author: WETHERELL, J.

text:
    Eddie PRUITT, Appellant, v. SOUTHEAST PERSONNEL LEASING INC., and Packard Claims Administration, Appellees.
    No. 1D09-4388.
    District Court of Appeal of Florida, First District.
    April 27, 2010.

      Rene E. Hidalgo of Richard E. Zaldivar, P.A., Miami, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellee.
   WETHERELL, J.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (JCC) erred in denying his request for a change in treating physician. Because the JCC correctly determined that Claimant acquiesced in the Employer/Carrier’s (E/C) selection of an alternate treating physician, we affirm.

On June 2, 2008, Claimant slipped and fell at work and sustained injuries to his low back and shoulder. The E/C accepted the accident as compensable and provided treatment. Claimant became dissatisfied with his initial treating physician, Dr. Kel-man, who told Claimant that his back was fine even though he was still having pain.

On November 14, 2008, Claimant filed a petition for benefits (PFB), which among other things, requested an alternate treating physician. On November 21, 2008, the E/C filed a response to the PFB but, due to an administrative oversight, the E/C failed to address Claimant’s request for an alternate treating physician. Claimant did not select an alternate physician in response to the E/C’s failure to do so. Several months later, the parties attended mediation in an attempt to resolve the issues raised in the PFB. In the mediation agreement, the E/C agreed to provide Claimant an alternate treating physician and stipulated to Claimant’s counsel’s entitlement to attorney’s fees for securing the benefit. The identity of the alternate physician was not specified in the agreement.

Two days after the mediation, the E/C sent Claimant a letter advising him of an appointment with Dr. Donshik, a newly authorized physician. Claimant attended several appointments with Dr. Donshik, but after Dr. Donshik opined that the workplace injury was no longer the major contributing cause of Claimant’s need for additional care, the E/C issued a notice denying further medical treatment.

The case proceeded to final hearing in May 2009. At the hearing, Claimant argued that he was entitled to select an alternate treating physician of his choice because the E/C forfeited its right to choose the physician by failing to respond within five days of receiving Claimant’s request. In response, the E/C maintained that it complied with the mediation agreement and that Claimant acquiesced in the E/C’s selection of Dr. Donshik as the alternate physician by attending medical appointments with the doctor and voluntarily accepting his treatment. Therefore, the E/C argued, Claimant had already received his one-time change in treating physician.

In her final order, the JCC found the E/C did not respond to Claimant’s request for a change in physician within five days of receipt of the request; that Claimant had never selected an alternate physician, even as of the date of the final hearing; and that the E/C complied with the mediation agreement by authorizing Dr. Donshik as the alternate physician. Accordingly, the JCC denied Claimant’s request for a change in treating physician.

On appeal, Claimant does not argue that the JCC’s findings are not supported by competent substantial evidence; rather, he contends that the JCC erred as a matter of law because under section 440.13(2)(f), Florida Statutes (2007), he was entitled to a one-time change to a treating physician of his choice based upon the E/C’s failure to timely respond to his request. We disagree.

Section 440.13(2)(f) provides in pertinent part:

Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident.... The carrier shall authorize an alternative physician ... within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary, (emphasis supplied)

The statute affords the employee “an absolute right to a one-time change in treating physician.” Providence Prop. & Cas. v. Wilson, 990 So.2d 1224, 1225 (Fla. 1st DCA 2008). The statute does not, however, give the employee an absolute right to select the alternate physician. Only if the E/C does not timely authorize an alternate physician does the statute give the employee the option of selecting the physician. If the employee fails to exercise that option, he or she may waive the right to select the alternate physician.

Here, not only did Claimant fail to select an alternate treating physician, but he also acquiesced in the E/C’s selection of the alternate physician by treating with Dr. Donshik. Under these circumstances, we conclude that the JCC did not err in denying Claimant’s request for an alternate treating physician. See Crenshaw v. Fla. Farm Bureau, 489 So.2d 186 (Fla. 1st DCA 1986) (holding that claimant acquiesced in E/C’s deauthorization of previously authorized physician by her silence and utilization of alternative treatment).

We recognize that in Harrell v. Citrus County School Board, 25 So.3d 675 (Fla. 1st DCA 2010), we explained that it is not enough for the E/C to simply acknowledge the employee’s statutory entitlement to a one-time change in physician or for the E/C to agree to authorize a new physician without actually selecting the physician, and we held that in order to comply with section 440.13(2)(f), the E/C must actually authorize at least one specific physician within five days of receiving the request for a change in physician. Id. at 678. However, Harrell is distinguishable on its facts. First, unlike Claimant in this case, the claimant in Harrell did not acquiesce in treatment with the physician belatedly authorized by the E/C. Second, unlike this case where Claimant has never identified an alternate physician, the PFB filed by the claimant in Harrell sought authorization of the alternate physician selected by the claimant based upon the E/C’s failure to comply with the statute.

Accordingly, the order on appeal denying Claimant’s request for a change in physician is AFFIRMED.

DAVIS and CLARK, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Melvin EUCEDA, Appellant, v. SOUTHEAST PERSONNEL LEASING, INC. and Packard Claims Administration, Appellees.
    No. 1D10-0926.
    District Court of Appeal of Florida, First District.
    April 27, 2010.
    David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

Upon review of Appellant/Claimant’s response to this Court’s show cause order entered March 2, 2010, we dismiss this appeal because the order on appeal, which dismisses Claimant’s petitions for benefits without prejudice and notes the statutory limitations period to amend the petition has not yet run, is a non-final, non-appeal-able order. See Mendez v. Shoma Dev. Corp., 899 So.2d 510 (Fla. 1st DCA 2005) (“Because the order being appealed herein dismisses the petition for benefits without prejudice and contemplates the refiling of the petition ..., we dismiss this appeal as being taken from a nonfinal, nonappealable order.”); Croes v. Univ. Cmty. Hosp., 886 So.2d 1040, 1041 n. 2 (Fla. 1st DCA 2004) (“We note that as an alternative to refiling her claim, appellant could have requested the entry of a final order of dismissal with prejudice, which could then be appealed.”). Martinez v. Collier County Public School, 804 So.2d 559 (Fla. 1st DCA 2002), is distinguishable because, there, it was “uncontested that Appellant’s claim would be time-barred if refiled.” See Martinez, 804 So.2d at 560.

DISMISSED.

KAHN, DAVIS, and THOMAS, JJ., concur.


author: VAN NORTWICK, J.

text:
    Edwin MORGES, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5325.
    District Court of Appeal of Florida, First District.
    April 27, 2010.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Edwin Morges challenges his convictions for robbery, arson, and grand theft of an automobile. Because the trial court erred in denying the motion for acquittal as to the charge of arson, we vacate that conviction and remand for resentencing. On the remaining convictions, we affirm.

On January 25, 2008, a van was stolen from a medical supply company in Pensacola. Later that day, that van was seen to be parked behind Advance America, a same-day loan business. The officer who spotted the van stayed to observe while back-up was en route. Two men wearing hooded sweatshirts were observed exiting the van and approaching the store. Shortly thereafter, these men were seen running from the store to the van with a cash drawer. The van fled away at a high rate of speed until coming to a stop at the end of a street in a residential neighborhood. The van had been set on fire. Witnesses directed law enforcement in the direction in which the van occupants were seen fleeing on foot. With the assistance of a police dog, law enforcement approached a residence. A man, a woman and a child were outside this residence in an automobile. When police approached, a gun was observed being held by the child in the back seat of the automobile. Also observed in the vehicle was a skull cap and black jacket. The surname given by the male occupant of the vehicle — Ayala—was found to match an outstanding warrant. According to police, appellant was located in the residence. A black ski mask was found in the residence as was ten pounds of marijuana. Over $600 was found in a bundle on top of the refrigerator.

At the conclusion of the State’s case-in-chief, appellant moved for a judgment of acquittal arguing, in part, that the State produced “no evidence that links [appellant] to the robbery or the theft of the car or the arson.” The trial court denied the motion as to all three charges.

A judgment of conviction comes to an appellate court clothed with the presumption of correctness, and a defendant’s claim of insufficiency of evidence cannot prevail where there is competent, substantial evidence to support the judgment. Donaldson v. State, 722 So.2d 177, 182 (Fla.1998). There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. Troy v. State, 948 So.2d 635 (Fla.2006). A trial court’s denial of a motion for a judgment of acquittal raising the sufficiency of the circumstantial evidence on the issue of identity is reviewed de novo. Fowler v. State, 987 So.2d 111 (Fla. 1st DCA 2008). Circumstantial evidence which creates nothing more than a strong suspicion that a defendant committed the crime is not sufficient to support a conviction. Cox v. State, 555 So.2d 352 (Fla.1989).

As to the arson charge, the State established that the stolen van was set on fire by use of gasoline before it was abandoned. Witnesses saw two males flee from the van and run in the direction where appellant and Mr. Ayala were apprehended. While it is likely one of the men poured the gas about the van before fleeing, there is no evidence of record suggesting who poured the gasoline or who lit the fire. While the State notes on appeal that Mr. Ayala’s girlfriend testified that she never smelled gasoline on his person, such a fact hardly supports appellant’s conviction for arson. Accordingly, the arson conviction is vacated.

We affirm as to the remaining issues raised on appeal, and we remand for entry of a scoresheet to reflect the vacation of the arson conviction and for resentencing as to the remaining convictions.

AFFIRMED in part, REVERSED in part, and REMANDED.

CLARK and MARSTILLER, JJ„ concur.


author: TAYLOR, J. FARMER, J.,

text:
    James NASON and Claudia Nason, Appellants, v. Darrel SHAFRANSKI, Neil Shafranski and Marie Shafranski, Appellees.
    No. 4D08-4293.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2010.

      Elwood T. Lippincott, Jr. of Elwood T. Lippincott, Jr., P.A., Coral Gables, John W. Gautier of Gautier Law Firm, P.A., Miami, and Bard D. Rockenbach and Andrew A. Harris of Burlington & Rocken-bach, P.A., West Palm Beach, for appellants.
    Charles W. Hall and Mark D. Winker of Banker Lopez Gassier P.A., St. Peters-burg, for appellees.
   TAYLOR, J.

Plaintiff, James Nason, and his wife, Claudia Nason, appeal a jury verdict which awarded them only a small portion of the damages they sought as a result of injuries plaintiff sustained in a car accident. The defendants admitted negligence in causing the .accident but disputed the amount of damages claimed by plaintiff. On appeal, plaintiff contends that the trial court erred by allowing defendants to present expert medical testimony regarding unnecessary surgeries and thereby shift the blame for plaintiffs damages from defendants to plaintiffs treating physician. Plaintiff argues that the trial court compounded the error by refusing to give plaintiffs requested jury instruction that the defendants were responsible for any damages resulting from any negligent or improper medical treatment. We agree that the trial court’s refusal to give such an instruction was reversible error.

After the accident, the plaintiff complained of pain in his neck and back. He was referred to Dr. Charles Theofilos, a board certified neurological surgeon who specializes in the spine and reconstructive surgery. Dr. Theofilos testified that the plaintiffs MRIs showed disc herniations in both his cervical and lumbar regions. He began his treatment with epidural injections to plaintiffs lumbar spine. He later performed a discogram and nucleoplasty, which helped plaintiff but did not cure the lumbar problem. Dr. Theofílos then removed herniated discs from plaintiffs neck and performed two fusions.

Thereafter, plaintiff continued to have low back and neck pain, and he also complained of headaches. He was referred to a pain management specialist and seen by a psychologist due to his depression and anxiety. Dr. Theofílos testified that if the plaintiffs low back symptoms continued or worsened, he would eventually need either an intradiscal decompression procedure or a two-level disc replacement.

The plaintiff testified that his medical bills to date totaled $340,687.45. His economist, Dr. Bernard Pettingill, estimated that plaintiffs economic damages (including medical care), both past and future, amounted to $733,853.

The defense called Dr. Schumacher, a board certified neurosurgeon. Dr. Schu-macher testified that he reviewed the MRI scans of plaintiffs neck and lumbar region. He saw that plaintiff had a few discs that slightly bulged, “like all of us do,” at C4-5 and C5-6, but he did not see any nerve compression on the plaintiffs MRIs. He disagreed with the MRI report’s conclusion that the herniated material was encroaching on the spinal cord. According to Dr. Schumacher, the bulging discs on the MRIs were consistent with degenerative changes only. Moreover, plaintiffs low back appeared normal to him. In his opinion, plaintiff just suffered a sprain in the crash, which should have been treated with medication, rest, or physical therapy; surgery should have been the last option. He testified that he had never done a discogram and nucleoplasty and that he was not surprised that the procedures offered plaintiff no relief. Over plaintiffs objection, he testified that he would not have recommended that plaintiff undergo reconstructive surgery.

During the charge conference, plaintiff complained that throughout the trial, beginning with opening statement, the defendants presented a defense that Dr. Theofílos was negligent in performing unnecessary surgeries and that he caused plaintiff to suffer physical injury and depression, which were not caused by the collision. Consequently, plaintiff requested the following jury instruction:

When a person has suffered injuries by reason of the negligence of another and exercising reasonable care in securing the services of a competent physician, and in following his advice and instructions his injuries are aggravated or increased by the negligence, mistake or lack of skill of such physician, the law regards the negligence of the wrongdoer in causing the original injury.

Defense counsel countered that the defendants were not claiming that Dr. Theo-fílos was negligent; their position was that the plaintiffs injuries did not result from the accident but, instead, from the plaintiffs decision to undergo unnecessary surgery performed by Dr. Theofílos. The trial court declined to give the requested instruction, commenting, “I don’t think anything has risen to the point of negligence, mistake or lack of skill.”

During closing argument, plaintiffs counsel asked the jury to award total damages of $3 to $4 million. Defense counsel argued as follows:

And I know some folks wrote down interestingly after the surgeries Theofílos said he’s got a 60 to 70 percent loss of motion in his spine. After I did what I did, he’s got a 60 to 70 percent loss of motion in his spine. After three surgeries he’s made him this worse off.
Folks, he didn’t need surgery. He didn’t need this....
[Schumacher] says exactly what Alvarez says. You don’t jump into surgery on a guy like this. Not at all. There’s nothing on the films that says that.
Schumacher says, Well, I’m a surgeon. I’ve looked at films and I’ve been in there and seen what they look like. And you look at a film, and you go in there and look at the disc, this man had no herniated disc that needed any type of surgery. And he says, What about the future stuff that’s $700,000 worth of stuff Theofilos wants to do? No way. Don’t do it.
It’s natural to feel some sympathy for the plaintiff here when you look at what Theofilos did.

After retiring to deliberate, the jury sent out a note that asked:

Judge Strickland, if the jury felt a provider of medical treatment to the plaintiff was unscrupulous, does that relieve the defendant under the law from liability for the consequences of that treatment?

Plaintiffs counsel urged the trial court to respond by giving the instruction he had previously requested regarding the defendants’ liability for aggravation of injuries caused by subsequent medical treatment. The court again refused to give the instruction, and, instead, referred the jury to the instructions already given.

The jury returned a verdict awarding plaintiff $150,000 in medical expenses, $38,000 in lost earnings, $50,000 in future medical expenses, $0 for future earnings, $50,000 for past pain and suffering and $50,000 for future pain and suffering, for a total damage award of $338,000.

“Trial courts are accorded broad discretion in their decisions to give a particular jury instruction, and any such decision will not be reversed on appeal absent prejudicial error.” Triple R Paving, Inc. v. Broward County, 774 So.2d 50, 56-57 (Fla. 4th DCA 2000). However, the “ ‘trial court is required to instruct the jury regarding the' law applicable to the facts in evidence and the law of the case.’ ” Wransky v. Dalfo, 801 So.2d 239, 243 (Fla. 4th DCA 2001) (quoting Lynch v. McGovern, 270 So.2d 770, 771 (Fla. 4th DCA 1972)).

As we explained in Letzter v. Cephas, 792 So.2d 481, 485 (Fla. 4th DCA 2001):

Under traditional negligence principles, a tortfeasor is responsible for all reasonably foreseeable consequences of his or her actions. See, e.g., Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330, 331 (1925); Cole v. Leach, 405 So.2d 449, 450 (Fla. 4th DCA 1981). An independent, unforeseeable intervening force, however, may serve to break the causal link and extinguish liability. See Gibson v. Avis Rent-A-Car Sys., Inc., 386 So.2d 520, 522 (Fla.1980); Bosket v. Broward County Hous. Auth., 676 So.2d 72, 74 (Fla. 4th DCA 1996). Typically, the question of whether an intervening cause is reasonably foreseeable is for the jury, but an exception exists when subsequent medical negligence in treating the initial injury is involved.
It has long been the law in Florida that when one who is negligent injures another causing him to seek medical treatment, negligence in the administration of that medical treatment is foreseeable and will not serve to break the chain of causation. And, in Stuart v. Hertz Corp., the supreme court reiterated that
“Where one who has suffered personal injuries by reason of the negligence of another exercises reasonable care in securing the services of a competent physician or surgeon, and in following his advice and instructions, and his injuries are thereafter aggravated or increased by the negligence, mistake, or lack of skill of such physician or surgeon, the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment thereof, and holds him liable therefor.”
351 So.2d at 707 (quoting J. Ray Arnold Lumber Corp. of Olustee v. Richardson, 105 Fla. 204, 141 So. 133, 135 (1932), quoting Texas Pacific Ry. Co. v. Hill, 237 U.S. 208, 35 S.Ct. 575, 59 L.Ed. 918 (1915)). When the rule in Stuart v. Hertz applies, the initial tortfeasor’s remedy against the succeeding negligent health care provider lies in an action for subrogation. See Undermiters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702, 704 (Fla.1980).

The key case for this well-established principle is Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977). In that case, which also arose from a car accident, the defendants filed a third-party complaint against the treating physician, alleging that negligent treatment had caused all or part of the plaintiffs injuries. Id. at 704. The Florida Supreme Court held that the third-party malpractice claim could not be tried as part of the main lawsuit over the plaintiffs objection. Id. at 706. The court concluded that this holding was in conformity with the rule announced in J. Ray Arnold Corp., etc. v. Richardson, 105 Fla. 204, 141 So. 133 (1932), as quoted above. Id. at 707. It noted that other courts follow this same principle, quoting 57 Am. Jur.2d Negligence section 149, at 507:

[T]he rule is well established that a wrongdoer is liable for the ultimate result, although the mistake or even negligence of the physician who treated the injury may have increased the damage which would otherwise have followed from the original wrong.

Id. (alteration in original). See also Caccavella v. Silverman, 814 So.2d 1145, 1147 (Fla. 4th DCA 2002).

The defendants argue that Stuari v. Hertz is inapposite because they were merely arguing below that the surgery was unnecessary, not that the physician committed medical malpractice. However, Florida law recognizes that “unnecessary surgery may constitute medical malpractice where it deviates from the standard of care.” Edwards v. Simon, 961 So.2d 973, 975 (Fla. 4th DCA 2007). Although the defendants carefully avoided the term “malpractice” during trial, Dr. Schumacher’s testimony and the defendants’ closing argument clearly placed this issue before the jury.

In Emory v. Florida Freedom Newspapers, 687 So.2d 846 (Fla. 4th DCA 1997), we addressed a similar challenge to the trial judge’s refusal to give an intervening cause instruction where testimony was admitted at trial regarding unnecessary medical treatment which allegedly worsened the plaintiffs condition. There, we reversed the judgment for defendants, concluding that there was a reasonable possibility that the jury may have been misled by the combination of evidence of unnecessary medical treatment and the absence of an intervening cause instruction. Id. at 848. We stated:

Here, the jury was not instructed as to the effect of actions taken by a third party following the original negligence. Absent such an instruction, the jury may have erroneously concluded that the surgery was a substantial cause of Emory’s injuries which served to sever the causal link between Emory’s injuries and the automobile accident, for which Florida Freedom was admittedly responsible.
Similarly, during the trial below, the jury was presented with testimony regarding the “unnecessary” nature of Emory’s medical treatment. Despite Florida Freedom’s argument to the court that this testimony was only evidence that the cost of such treatment was unnecessary and, therefore, not compensable, the testimony also served to shift the blame for the injuries from Florida Freedom to Emory’s surgeon. The jury was then left without any instruction as to how to treat this evidence of subsequent injury. Therefore, in accordance with the result in Dungan [v. Ford, 632 So.2d 159 (Fla. 1st DCA 1994) ], we find that the admission of this testimony, in the absence of a jury instruction addressing the issue, created a reasonable possibility that the jury was indeed misled. We, therefore, reverse the final judgment and remand for a new trial.

Id.

As did the defendants in Emory and Dungan, the defendants here argue that the reasonableness and necessity of medical expenses are always issues in a personal injury action, and that they merely contested those issues. See, e.g., E.W. Karate Assn. v. Riquelme, 638 So.2d 604, 605 (Fla. 4th DCA 1994); Irwin v. Blake, 589 So.2d 973, 974 (Fla. 4th DCA 1991).

In Dungan, the first district rejected arguments made by the defendants that their inquiry regarding the plaintiffs surgeries was directed to the reasonableness of the sums for medical expenses. Characterizing their contention as “somewhat disingenuous,” the court stated:

Our review of Standard Civil Jury Instruction 6.2(c), and the cases construing the same satisfies us that the “necessarily or reasonably obtained” language used in the instruction relates simply to (1) whether the charges are for treatment the plaintiff sought for injuries at issue in a lawsuit, as opposed to treatment for some other condition, and (2) whether the charges are for a reasonable amount. Because the cases indicate that “reasonableness or necessity” can be established by lay testimony, it must involve a question of necessity from the perspective of the injured party, rather than from the perspective of a medical expert. See, Garrett v. Morris Kirschman & Co., 336 So.2d 566 (Fla. 1976), and Albertson’s, Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1985), rev. denied, 486 So.2d 595 (Fla.1986).

632 So.2d at 163.

The court found that the defense medical expert clearly focused on the treating physician’s lack of skill and judgment and poor results. It concluded that the admission of this expert testimony, coupled with the denial of a special instruction informing the jury how to handle evidence of negligent medical treatment, amounted to reversible error. Id. at 164.

In this case, the jury’s confusion was apparent from the note it sent to the judge during deliberations. It sought guidance on how to handle the defendants’ evidence that Dr. Theofilos was “unscrupulous.” The judge’s failure to dispel that confusion by granting plaintiffs request for the special instruction requires us to reverse and remand for a new trial.

Reversed and Remanded.

LEVENSON, JEFFREY R., Associate Judge, concurs.

FARMER, J., concurs specially with opinion.

FARMER, J.,

specially concurring.

I join in Judge Taylor’s opinion without reservation and write only to add a thought to her cogent analysis.

The jury instruction (JI) concerning defendant’s liability for the doctor’s negligence in treating plaintiff for injuries caused by defendant is a problem. I assume this is either intervening or concurring causation or something of both. At any rate, I doubt that lay jurors easily pick up this complex legal concept. Truth be told, some lawyers have trouble with it.

The issue concerns whether the law recognizes the doctor treating the victim for an injury caused by another person as part of a connected chain of causation for the victim’s set of injuries. Or, instead, is the treating doctor an entirely disconnected actor and any further injuries caused by the doctor a separate matter for which the first actor is not responsible?

As Judge Taylor shows, the answer is that the law considers the treating doctor’s negligence in rendering medical care to the victim for the initial injuries as part of the consequences caused by the original actor’s negligence that required the medical treatment. Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977). This liability is not something erupting from nowhere because it is foreseeable by the first negligent actor.

Now, we all know that negligent people causing accidents don’t go around before the event thinking about what might happen to a victim during medical treatment for injuries they accidentally cause. But the fiction is that, if they did think about it, they could reasonably anticipate a doctor treating such injuries might make them worse. You cannot injure a person and reasonably expect the victim not to seek medical treatment for the injuries you caused; doctors are human and sometimes make things worse. That is the legal principle the JI must teach. But in a way readily comprehensible by someone who did not spend three years in law school.

Which brings me thus. Here is a subject begging for a good dose of plain English. In this case the special JI proposed by plaintiff is hopelessly muddled. If you persist in digging through it, you can eventually discern a correct statement of law on concurring or intervening cause by a subsequent treating doctor somewhere within. But I sure wouldn’t want to try this one out on lay jurors.

We do have a standard jury instruction (FSJI) which if adapted for this case might read:

Negligence may also be a legal cause of injury even though it operates in combination with the act of another occurring after the negligence occurs if such other cause was itself reasonably foreseeable and the negligence contributes substantially to producing such injury.

See Fla. Std. Jury Instr. (Civ.) 401.12c. This is a generic instruction for concurring or intervening negligence. From a plain English perspective, I don’t think this FSJI is satisfactory in cases of liability for later negligent medical treatment. I therefore offer the following draft of a JI for this subject until a standard one can be approved:

The next issue for your consideration is the claim that (defendant) is liable for the negligence of (doctor) (hospital) (nurse) in treating (claimant) for injuries he claims to have suffered in (event). A person responsible for negligently injuring another may also be further liable for the ensuing negligence of any health care provider treating the injured party if:
1. injuries caused by the negligence of (defendant) reasonably required medical care or treatment by a health care provider;
2. a health care provider gave (claimant) medical care or treatment for injuries caused by (defendant) in (event); and
3. (Claimant) did not unreasonably fail to comply with that health care provider’s medical advice and instructions.

Again, this is just a suggestion. But the FSJI needs a specific instruction for this complex legal subject.

      . We have twice certified to the Florida Supreme Court the question of whether Stuart v. Hertz is still good law since the passage of the Tort Reform and Insurance Act of 1986, which made each tortfeasor liable only for his own negligence. See Caccavella v. Silverman, 814 So.2d 1145 (Fla. 4th DCA 2002); Letzter v. Cephas, 792 So.2d 481 (Fla. 4th DCA 2001). The Florida Supreme Court has declined to answer the certified questions in both cases.

      . Here, a mistake in judgment amounting to medical negligence.


author: WALLACE, Judge.

text:
    Georgina SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3547.
    District Court of Appeal of Florida, Second District.
    April 28, 2010.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Georgina Smith appeals the judgments and sentences imposed after she entered no contest pleas to charges of grand theft and scheming to defraud. Ms. Smith’s counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Anders Briefs, 581 So.2d 149 (Fla.1991). After a careful review of the record, we find no error in Ms. Smith’s judgments and the probationary sentences imposed. However, we reverse and remand with directions to correct the amended judgment for fines and costs by striking a $20 cost for the Crime Stoppers Trust Fund.

The original written judgment for fines and costs included a $175 fine under section 775.083, Florida Statutes (2006). In addition, the written judgment for fines and costs included a $20 cost for the Crime Stoppers Trust Fund in accordance with section 938.06, Florida Statutes (2006). The $175 fine was a discretionary fine that should have been orally pronounced at sentencing but was not. See Masengale v. State, 969 So.2d 1218, 1219 (Fla. 2d DCA 2007). Ms. Smith filed a motion to correct sentencing error in which she sought relief from both the $175 fine and the $20 surcharge under Masengale. The trial court ordered the State to respond but only directed the State’s attention to the $175 fine. The State responded, conceding error. The trial court then entered an order directing the clerk of the circuit court to strike the $175 fine, and an amended judgment for fines and costs was subsequently entered, deleting the $175 fine. However, the order failed to address the $20 surcharge, and the amended judgment for fines and costs still contains this surcharge.

On appeal, Ms. Smith argues that the trial court erroneously failed to strike the $20 cost in addition to the $175 fine. Ms. Smith is correct, and the State properly concedes error. Section 938.06(1) authorizes the additional $20 cost as “an additional surcharge” “to any fine prescribed by law.” Because the $175 fine was not properly imposed, the trial court could not impose the additional $20 surcharge. Perdue v. State, 17 So.3d 1283, 1283 (Fla. 2d DCA 2009); Masengale, 969 So.2d at 1219. Therefore, this cost should have been stricken as well.

Accordingly, we affirm the judgments and sentences imposed on Ms. Smith, but we remand for the entry of a second amended judgment for fines and costs striking the $20 surcharge.

Affirmed and remanded with instructions.

KHOUZAM and CRENSHAW, JJ., Concur.


author: VILLANTI, Judge.

text:
    In the Interest of E.K., a child. S.K., Appellant, v. Department of Children and Family Services, Guardian Ad Litem Program, and M.F., Appellees.
    No. 2D09-3487.
    District Court of Appeal of Florida, Second District.
    April 28, 2010.

      S.K., pro se.
    Bernie McCabe, State Attorney, and Jillian Mannino, Assistant State Attorney, Clearwater, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Tavares, for Appel-lee Guardian ad Litem Program.
    Melissa A. Tartaglia of Tartaglia Law Group, P.A., Port Richey, for Appellee M.F.
   VILLANTI, Judge.

S.K., the Father, appeals the trial court’s order denying his motion to set aside the final judgment of termination of parental rights. We affirm the trial court’s order; however, we write to discuss the problem that still exists for parents seeking to raise claims of ineffective assistance of counsel arising out of termination proceedings and to certify two questions of great public importance on this issue.

The Department of Children and Family Services filed a petition on October 19, 2007, seeking to terminate the Father’s parental rights to his son, E.K. The trial court determined that the Father was indigent, and the court appointed counsel to represent the Father during the ensuing termination proceedings. The adjudicatory hearing on the Department’s petition was held February 25 and 26, 2008, and the Father’s counsel represented him at that hearing. After considering the evidence presented, the trial court terminated the Father’s parental rights on April 1, 2008. This court subsequently affirmed the order of termination. See S.K v. Dep’t of Children & Family Servs., 997 So.2d 414 (Fla. 2d DCA 2008) (table decision).

On March 20, 2009, the Father filed a pro se “motion for relief from judgment or orders,” asking the trial court to set aside the order of termination based on the alleged ineffective assistance of his trial counsel. The Father filed his motion pursuant to Florida Rule of Juvenile Procedure 8.270(b), which provides for relief from final judgments or orders under certain circumstances. While the Father’s motion was pending, the trial court entered a final judgment of adoption as to E.K. Then, after considering written submissions from all of the parties, including the adoptive parent, the trial court denied the Father’s motion for relief from judgment. In so doing, the trial court found, inter alia, that rule 8.270(b) was not a proper mechanism through which to raise a claim of ineffective assistance of counsel in a termination proceeding. The Father now appeals this ruling, arguing that the effect of this ruling is to leave him with a right to effective counsel but no mechanism through which to enforce that right, i.e., the proverbial right-without-a-remedy dilemma.

We agree with the trial court that rule 8.270 is not the proper mechanism through which a parent may present a claim for ineffective assistance of counsel in a termination proceeding. Under rule 8.270, a parent may be entitled to relief from a termination judgment, but only for the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect.
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for rehearing.
(3) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of any other party.
(4) That the order or judgment or any part thereof is void.

Fla. R. Juv. P. 8.270(b). The court may also fix clerical mistakes in judgments under rule 8.270(a).

Here, the Father’s motion for relief did not allege that there are clerical mistakes in the judgment. Further, his motion did not contain any allegations concerning any of the enumerated grounds for setting aside the termination judgment found in rule 8.270(b). Instead, all of the claims raised in the Father’s motion addressed procedural and eviden-tiary problems that arose during the original termination proceeding and the alleged ineffective assistance of his appointed counsel in dealing with those problems. Because these claims do not present a cognizable basis for relief under rule 8.270, the trial court properly denied the Father’s motion.

Despite this affirmance, we write to point out the inequity — created by the courts — that exists in giving the Father a right to effective appointed counsel but leaving him with no means by which to enforce that right. The issue of how to properly pursue a claim of ineffective assistance of counsel arising out of a termination of parental rights proceeding has been confounding the Florida courts for several years. Although the supreme court has not explicitly said so, it appears that a parent who is constitutionally entitled to appointed counsel in a termination proceeding is implicitly entitled to effective assistance of counsel. See, e.g., In the Interest of E.H., 609 So.2d 1289, 1290 (Fla.1992); cf. S.B. v. Dep’t of Children & Families, 851 So.2d 689, 693-94 (Fla.2003) (distinguishing between dependency cases and termination cases and pointing out that when “there is no constitutional right to counsel ... there is no right to collaterally challenge the effectiveness of counsel”). The primary problem is the lack of an appropriate procedural mechanism through which parents can enforce this right when counsel is ineffective.

Faced with this problem, the courts have considered three means by which such a claim could be raised: direct appeal, a posttrial motion authorized by the rules, or a petition for writ of habeas corpus. As discussed above, rule 8.270(b) does not provide a means of relief because claims of ineffective assistance of counsel cannot be shoehorned into any of the rule’s provisions. In addition, no other more appropriate rule of juvenile or appellate procedure currently exists. Similarly, the courts have noted that direct appeal is not usually an effective mechanism through which to raise the issue of ineffective assistance of counsel because relief is available on direct appeal only when the ineffectiveness is apparent on the face of the record. See L.H. v. Dep’t of Children & Families, 995 So.2d 583, 583 (Fla. 5th DCA 2008). Since that is rarely the case, direct appeal is not usually a viable mechanism for raising such claims.

Absent some wholly new approach to the issue, this leaves only the possibility of using a petition for writ of habeas corpus as the means to enforce the right to effective assistance of counsel in termination cases. The supreme court has permitted a parent to use a habeas petition to obtain a belated appeal in a termination of parental rights proceeding based on counsel’s ineffectiveness for failing to file a timely notice of appeal. See E.H., 609 So.2d at 1291. In doing so, the court explained:

The writ of habeas corpus was designed as a speedy method of affording a judicial inquiry into the cause of the alleged unlawful custody of an individual. State ex rel. Paine v. Paine, 166 So.2d 708 (Fla. 3d DCA 1964). For that reason, habeas corpus has been authorized as a remedy for ascertaining a parent’s right to custody of his or her children. Id. We hold that the parent’s petition for writ of habeas corpus should be filed with the trial court. This will permit a resolution of any factual issues as well as any defenses including those predicated upon laches.

Id. at 1290-91.

Based on this language, it would seem that a parent could raise the issue of ineffective assistance of counsel by filing a petition for writ of habeas corpus in the trial court. However, in E.T. v. State, Department of Children & Families, 930 So.2d 721 (Fla. 4th DCA 2006), a divided panel of the Fourth District rejected this procedure. After an exhaustive review of the law on this issue across all fifty states, the Fourth District noted that only one state — California—permitted such claims to be raised by habeas petition. Id. at 727. Other states had specifically rejected habe-as as a method for addressing these claims. Id. The Fourth District sided with those states that have rejected habeas as a proper method for raising this type of claim, explaining:

[T]he perils inherent in the use of habe-as corpus petitions, such as unlimited time to file the petition, the lack of any identified rules, the proper burden of proof, and the proper parties to such a petition, lead us to conclude that any attack on the effectiveness of counsel must come in the form of a direct appeal or a post-trial motion authorized by the rules.

Id. at 728. The court recognized that both of these methods — direct appeal and post-trial motion — presented “obstacles.” Id. As to direct appeal, there is frequently not a sufficient record to establish that counsel was ineffective. Id. The court noted that “nearly all states that permit ineffectiveness of counsel claims to be raised on direct appeal have developed procedural rules to allow for additional fact finding if necessary.” Id. However, Florida has no such rules. Further, at this time, there is no “post-trial motion authorized by the rules” in Florida that would allow parents to raise a claim of ineffective assistance of counsel. Id. Despite recognizing that parents have a right without an effective remedy, the Fourth District concluded:

Neither our legislature nor our judicial system has authorized the use of a petition for habeas corpus for ineffective assistance of counsel claims in termination of parental rights cases nor have they created an alternative mechanism to pursue such a claim, a fact acknowledged by the father. It is not our place to legislate or promulgate.

Id. at 729. Thus, the Fourth District held that the father’s habeas petition was properly denied, and it certified two questions to the supreme court asking it to address the proper mechanism for pursuing a claim of ineffective assistance of counsel in a termination of parental rights proceeding. Id.

In his dissent, Chief Judge Stevenson posited that habeas was an appropriate method for raising this type of claim. Judge Stevenson cited the supreme court’s decision in E.H. as supporting this proposition. He then explained:

In my view, E.H. supports the proposition that the writ of habeas corpus can be an appropriate vehicle in which to bring a claim of ineffective assistance of counsel in a TPR case even where, as here, the alleged deficiency is not as obvious as the failure to file a notice of appeal. Indeed, the absence of authorized post-trial motions for these types of claims makes the case for habeas corpus even more compelling. Until supplanted by rule, habeas corpus was the recognized means by which to challenge the effectiveness of counsel in criminal cases. See Roy v. Wainwright, 151 So.2d 825 (Fla.1963); see also Fla. R.Crim. P. 3.850; Fla. R.App. P. 9.141(c). Recently, the First District noted that there were no procedural rules available and held that a petition for writ of habeas corpus was the appropriate way to assert an ineffective assistance of counsel claim in an involuntary commitment case under the Jimmy Ryce Act[.]

Id. at 730 (Stevenson, C.J., dissenting). Judge Stevenson noted that by filing a habeas petition in the trial court, the parent would have a vehicle available to present evidence to support the ineffective assistance claim — a vehicle not available if the issue is raised on direct appeal. Id. at 731. Further, he noted that the supreme court could establish reasonable time limits for filing such petitions to avoid the concerns about the otherwise unlimited time inherent in seeking habeas relief. Id.

The supreme court accepted review of E.T. based on the certified questions of great public importance. See E.T. v. State, 957 So.2d 559 (Fla.2007). However, the court then found that because the children had already been adopted, E.T.’s case was moot. Therefore, the court exercised its discretion and chose not to address the certified questions. Instead, it referred “[t]he issue of ineffective assistance of counsel claims in termination of parental rights cases ... to the Juvenile Court Rules Committee and the Appellate Court Rules Committee for consideration of a rule to address such claims.” Id. at 559-60.

After the supreme court’s decision not to review NT., the Fifth District certified the same questions of great public importance in L.H., 995 So.2d at 585. In that case, the mother attempted to raise her claims of ineffective assistance of counsel on direct appeal, but she admitted that her claims were not apparent from the face of the record. Id. at 583. The Fifth District affirmed the denial of her claims on this basis but pointed out the injustice inherent in having no effective mechanism by which parents can vindicate their constitutional right to effective assistance of counsel in termination proceedings. Id. at 584. In doing so, the court stated:

Because Florida law provides no specific mechanism for challenging the effectiveness of counsel in a termination case, a parent must employ one of the procedures available in civil cases, such as direct appeal or a post-trial motion authorized by the rules, but as this case demonstrates, those procedures are lacking.

Id. The Fifth District then certified the same questions as previously certified by the Fourth District in E.T. However, the supreme court declined review, see Dep’t of Children & Families v. L.H., 3 So.3d 1246 (Fla.2009) (table decision), presumably because the rules committee was reviewing the issue pursuant to the court’s directions in E.T.

Despite having requested the rules committee to address this problem, on December 17, 2009, the supreme court adopted amendments to the rules of juvenile procedure that did not include any mechanism for addressing claims of ineffective assistance of counsel in termination proceedings. See In re Amendments to the Fla. Rules of Juvenile Procedure, 26 So.3d 552 (Fla.2009). In that opinion, the court addressed the omission of any amendment to the rules regarding such claims, stating:

The Committee’s report also responds to the Court’s request that it consider the issue of the appropriate procedure to raise an ineffective assistance of counsel claim in termination of parental rights cases. The Committee does not present any proposal on this issue and states that after consideration and discussion, it feels that the issue is outside the scope of its purview. This “no action” response has been severed from this case and is being addressed separately.

Id. at 553 n. 1. Thus, the rules committee has declined to address the issue, and so has the supreme court.

Turning back to this case, we note that the current state of Florida law requires us to affirm the denial of the Father’s motion. However, because we recognize the unfairness inherent in the Father’s having a right with no remedy, we certify the same questions of great public importance as were certified in E.T. and L.H. concerning the proper procedural mechanism for raising this type of claim:

1. DOES FLORIDA RECOGNIZE A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING FROM A LAWYER’S REPRESENTATION OF A PARENT IN A PROCEEDING FOR THE TERMINATION OF PARENTAL RIGHTS?
2. IF SO, WHAT PROCEDURE MUST BE FOLLOWED TO PURSUE A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL?

Affirmed; questions certified.

WHATLEY, J., Concurs.

MORRIS, J., Concurs specially.

      . In this appeal, the adoptive parent asserts that the Father's appeal is likewise moot because E.K. has been adopted, citing the supreme court's holding in E.T., 957 So.2d at 559. However, we note that in E.T., the trial court denied the father's pending habeas petition before it granted the adoption petition. See E.T., 930 So.2d at 725. Here on the other hand, the trial court granted the adoption petition while the Father's motion was pending. While we make no ruling on this issue, we note that a trial court should not be permitted to moot a parent’s pending motion or petition raising ineffective assistance of counsel by granting an adoption petition before it rules on the pending motion. Instead, the trial court should dispose of all pending motions or petitions directed to the termination judgment before granting an adoption petition.


text:
    Jan BAILLARGEON, as Personal Representative of the Estate of Frank D’Alessandro, deceased, Appellant, v. Randolph SEWELL and Daphne Sewell, as Class Representatives for persons named and unnamed, Appellees.
    No. 2D08-3828.
    District Court of Appeal of Florida, Second District.
    April 30, 2010.

      Robert L. Donald of Law Offices of Sherman & Donald, Fort Myers, and An-dré J. Patrone of Patrone & Kemp, P.A., Fort Myers, for Appellant.
    Daniel L. Wallach of Becker & Poliakoff, P.A., Fort Lauderdale, for Appellees.
   WALLACE, Judge.

Two creditors of a decedent filed a statement of claim in an estate administration proceeding on behalf of themselves and a class of persons similarly situated. The personal representative of the estate moved to strike the claim to the extent that it attempted to assert claims on behalf of persons other than the claimants. After a hearing, the circuit court ruled that the filing of the claim was unnecessary because a federal action asserting the class claim was pending against the decedent at the time of his death and because the personal representative of the estate was promptly substituted as a party defendant in the federal action. In addition, the circuit court ruled that a class claim could be filed in an estate administration proceeding. In accordance with these rulings, the circuit court denied the motion to strike the class claim and granted the claimants six months within which to amend their statement of claim to identify the other members of the class by name and address. The personal representative appealed the circuit court’s order.

We hold that the pendency of the federal class action at the death of the decedent and the prompt substitution of the personal representative in the pending federal action did not make the filing of a claim unnecessary. We also hold that the filing of class claims in estate administration proceedings is not authorized under the Florida Probate Code (the Code). The circuit court erred in ruling to the contrary-on these issues. Accordingly, we reverse the circuit court’s order to the extent that it denied the motion to strike the claim filed on behalf of the class and granted the claimants a six-month extension to amend the class claim.

I. THE FACTS AND PROCEDURAL HISTORY

Frank D’Alessandro (the Decedent) died on September 17, 2007, at the age of fifty-two. At the time of his death, the Decedent was a resident of Lee County, Florida. The Decedent was in the real estate business, and he left an estate with substantial assets. The Decedent died testate, and his will named Jan Baillargeon (the Personal Representative) to serve as the personal representative of his estate. After the will was admitted to probate, letters of administration were issued to the Personal Representative on October 12, 2007. The first publication of notice to creditors occurred on October 19, 2007.

When the Decedent died, he was one of several defendants named in a class action that was then pending in the United States District Court for the Middle District of Florida. Randolph Sewell and Daphne Se-well (the Sewells) had filed the class action on May 80, 2007, on behalf of themselves and all others similarly situated against a number of entities and individuals, including the Decedent. After letters of administration were issued to the Personal Representative, she was promptly substituted as a party defendant in the pending action. The Sewells then filed a first amended class action complaint (the Complaint) specifically naming the Personal Representative as a defendant.

The facts which formed the basis for the class action claims, as alleged in the Complaint, may be briefly summarized as follows: In 2003, several entities — including two companies with which the Decedent was associated — devised an investment scheme whereby preleased houses would be sold to investors with the expectation of above-market returns on their investments. The assumption underlying the investment scheme was the ability of the promoters and investors to enter into lease-to-own contracts with prospective tenants who would rent the houses for a relatively brief period and then exercise their options to purchase the property. When this occurred, the investors would pocket a tidy profit. That was the plan; the reality was very different. The real estate bubble burst, the expected tenants did not materialize, and the over-leveraged scheme collapsed. The investors who had already bought into the deal faced the dilemma of making substantial mortgage payments on empty houses or losing the properties to foreclosure.

According to the Complaint’s allegations, the participation by the Sewells and the other members of the class in the defendants’ investment scheme included the following consequences: (1) the risk of losing their properties in foreclosure proceedings, (2) damages to their credit ratings, and (3) “substantial out-of-pocket expenses relating to the acquisition and financing of their investment properties.” The Complaint asserted claims for violations of the Securities Act of 1933, the Securities Exchange Act of 1934, SEC Rule 10b-5, and the Interstate Land Sales Full Disclosure Act, as well as claims for fraud, breach of contract, breach of the duty of good faith and fair dealing, and deceptive and unfair trade practices. Although the class action was pending when the Decedent died, the district court had not ruled that the action could proceed as a class action under Federal Rule of Civil Procedure 23 and it had not certified a class or classes of claimants.

On January 16, 2008, within three months after the first publication of notice to creditors, the Sewells filed a statement of claim “both individually and on behalf of [a] class of claimants.” In their statement of claim, the Sewells identified the pending federal litigation, summarized the facts that led to the filing of the class action, and asserted that “[t]he amount of the claim is in excess of $150 million.” A copy of the Complaint was attached to the claim. The Sewells provided their names and address and the name and address of their attorney, but they did not list the names and addresses of the other members of the putative class.

The Personal Representative moved to strike the claim to the extent that it was filed as a class claim on the following grounds: (1) the claim did not list the names of the other members of the purported class, (2) the claim did not list the addresses or post office addresses of the other members of the purported class, (3) the claim was not signed and verified by the other members of the purported class, and (4) the Sewells had not been certified as representatives of the purported class by the district court. The absence of class certification notwithstanding, the Personal Representative also asserted that “Florida law does not permit a claimant to file a claim on behalf of other unnamed claimants.”

II. THE PARTIES’ ARGUMENTS

At the hearing on her motion to strike, the Personal Representative argued that the Sewells’ class claim did not meet the requirements of the Code and the Florida Probate Rules. In particular, the Personal Representative relied on section 733.703, Florida Statutes (2007), and Florida Probate Rule 5.490. Section 733.703(1) states, in pertinent part, as follows: “A creditor shall file a written statement of the claim.” Rule 5.490(a) provides the essential details concerning the formal requirements of the requisite statement of claim:

Form. A creditor’s statement of claim shall be verified and filed with the clerk and shall state:
(1) the basis for the claim;
(2) the amount claimed;
(3) the name and address of the creditor;
(4) the security for the claim, if any; and
(5) whether the claim is currently due or involves an uncertainty and, if not due, then the due date and, if contingent or unliquidated, the nature of the uncertainty.

The rule also outlines the circumstances under which a claim already filed may be amended. “If a claim as filed is sufficient to notify interested persons of its substance but is otherwise defective as to form, the court may permit the claim to be amended at any time.” Fla. Prob. R. 5.490(e). Similarly, section 733.704 provides: “If a bona fide attempt to file a claim is made but the claim is defective as to form, the court may permit the amendment of the claim at any time.”

The Personal Representative did not challenge the sufficiency of the Sewells’ individual claim. But she argued that the claim was defective as to the purported class because it failed to state the names and addresses of the class members as required by rule 5.490(a)(3). In addition, the Personal Representative argued that the claim was also defective as to the purported class because the class members had failed to sign and verify the claim as required under the rule. In support of her arguments, the Personal Representative relied on the Fourth District’s decision in In re Estate of Gay, 294 So.2d 668 (Fla. 4th DCA 1974). In the Gay case, the Fourth District held that the filing of a class claim was inconsistent with the requirements of section 733.16, Florida Statutes (1971). Id. at 670. Section 733.16 appeared in the former Florida Probate Law. The Fourth District also said that the filing of a class claim was in conflict with the public policy of this state favoring the speedy administration of decedents’ estates. Id.

In response to the Personal Representative’s arguments, the Sewells made three points. First, they asserted that it was unnecessary for them to file a claim in the estate because the class action was pending at the death of the Decedent and the Personal Representative had been promptly substituted in the pending action as a party defendant. Thus, according to the Sewells, they only filed the statement of claim in the probate case “out of an excess of caution.” In support of their argument that filing a statement of claim in the probate case was unnecessary, the Sewells relied on In re Estate of Shaw, 340 So.2d 506 (Fla. 3d DCA 1976), another case that construed section 733.16 of the former Florida Probate Law. Second, the Sewells sought to distinguish the Fourth District’s decision in Gay on various grounds. Finally, the Sewells argued that they should be granted leave to amend their statement of claim as soon as they were able to determine the names and addresses of the other members of the class.

III. THE CIRCUIT COURT’S ORDER

After the hearing, the circuit court entered an order denying the Personal Representative’s motion to strike the class claim. In its ruling, the circuit court dismissed the Fourth District’s decision in Gay as not controlling. Instead, the circuit court relied on the decision in Shaw. The circuit court explained its decision as follows:

As in Shaw, the estate had notice because the action was pending when the [Decedent] died and the [Personal Representative] has been joined in the federal class [action]. Furthermore, Rule 5.490(e)[] provides that the court can permit the claim to be amended at any time if the claim as filed is sufficient to notify interested persons. As for the holding in Gay, the Court feels that it is an anomaly and is contrary to the Second District Court of Appeal’s holding in Fair v. W.B. Clement, 202 So.2d 613 (Fla. 2d DCA 1967).

In addition to denying the motion to strike, the circuit court allowed the Sewells an additional six months to amend their claim. Although the circuit court’s order did not expressly state the nature of the amendment that it authorized, the Sewells’ request was for leave to amend by stating the names and addresses of the other members of the class as soon as their identities could be determined. The circuit court also ordered that “a timely motion seeking an extension of time will be considered upon a showing of good cause.” This appeal followed.

IY. THE STANDARD OF REVIEW

The issue before us requires the interpretation of provisions of the Code and Florida Probate Rule 5.490. We apply a de novo standard of review to questions involving the interpretation of statutes and rules of court. See Arnold, Matheny & Eagan, P.A. v. First Am. Holdings, Inc., 982 So.2d 628, 632 (Fla.2008); Barco v. Sch. Bd., 975 So.2d 1116, 1121 (Fla.2008); Midway Servs., Inc. v. Custom Mfg. & Eng’g, Inc., 974 So.2d 427, 428 (Fla. 2d DCA 2007). Thus our review of the circuit court’s decision is de novo.

V. DISCUSSION

A. The Circuit Court’s Misplaced Reliance on Shaw

The circuit court’s rationale for accepting the Sewells’ argument that it was unnecessary to file a claim on behalf of the unidentified members of the class was as follows: “[T]he estate had notice ... the action was pending when the [Decedent] died and the [Personal Representative] has been joined in the federal class [action].” However, the circuit court’s reliance on the decision in Shaw for this proposition was misplaced. In the Shaw case, the result was controlled by the former Florida Probate Law’s section 733.16, the predecessor to current section 733.702. Under the law then in effect, the statutory requirement for creditors to file their claims against the estate was subject to certain exceptions. One of these exceptions applied if suit was filed on the creditor’s claim and service of process was made on the personal representative within four months of the first publication of the notice to creditors. § 733.16(l)(a). Under this exception, if an action on the claim was pending at the death of the decedent and the personal representative was substituted as a party in the action within the period for filing claims, then filing a claim in the probate case was unnecessary. See Brown v. Wood, 202 So.2d 125, 128 (Fla. 2d DCA 1967); Kornblum v. Heflin, 183 So.2d 843, 845-46 (Fla. 2d DCA 1966). In Shaw, the Third District held that the facts of the case before it fell within the statutory exception of section 733.16(l)(a) to the requirement of filing a claim against the estate. 340 So.2d at 507.

The statutory exception in the former Florida Probate Law for actions pending at the death of the decedent was not carried forward in the Code. On the contrary, section 733.702(2) provides:

No cause of action, including, but not limited to, an action founded upon fraud or other wrongful act or omission, shall survive the death of the person against whom the claim may be made, whether or not an action is pending at the death of the person, unless a claim is filed within the time periods set forth in this part.

(Emphasis added.) Thus the exception for actions pending at the death of the decedent is no longer in effect, and Shaw and similar cases that applied the exception in section 733.16(l)(a) are no longer authoritative on this question. See Spohr v. Berryman, 589 So.2d 225, 228-29 (Fla.1991); Roberts v. Jassy, 436 So.2d 394, 395-96 (Fla. 2d DCA 1983); Am. & Foreign Ins. Co. v. Dimson, 645 So.2d 45, 47 (Fla. 4th DCA 1994); Lasater v. Leathers, 475 So.2d 1329, 1330 (Fla. 5th DCA 1985).

It follows that the filing of a claim on behalf of the unidentified members of the class was not made unnecessary by the pendency of the class action at the death of the Decedent and the prompt substitution of the Personal Representative in the pending federal action. The circuit court erred in ruling to the contrary. This conclusion leads us to the core question in this ease: Does the Code authorize the filing of class claims in estate administration proceedings? We begin our inquiry into this question by examining the Fourth District’s decision in Gay, a case decided under pre-Code law.

B. In re Estate of Gay

The Fourth District’s decision in Gay is the only reported Florida case that has addressed the issue of whether a class claim may properly be filed in a probate proceeding. Indeed, the parties inform us that a nationwide search has failed to disclose any other case that addresses this issue. Therefore, Gay — which the circuit court characterized as “an anomaly” — merits close examination. Although the Fourth District’s decision in Gay predates the Code, the facts and procedural history in Gay are remarkably similar to the facts and procedural history in the case before us.

In Gay, as in this case, a federal class action was pending against the decedent and other defendants when the decedent died. 294 So.2d at 669. The claimant, who had been approved by the federal court as the class representative, filed a claim in the probate proceedings “on behalf of himself and all others similarly situated.” Id. The executors of the estate moved to dismiss or strike the claim on the grounds “that it was unauthorized by [s]ection 733.16” and that it failed to state the names and addresses of the class members as required by the statute. Id. The claimant moved to amend his claim “ ‘by adding the names and addresses of the class members when they are finally determined’ (in the Federal Court action).” Id. The circuit court denied the executors’ motion to dismiss or to strike the claim. Id. In addition, as in this case, the circuit court granted the claimant’s motion to amend the claim to list the names and addresses of the class members when they “have been finally determined in the Federal Court action.” Id.

On the executors’ appeal from the circuit court’s order, the Fourth District framed the issue before it as “whether a ‘class claim’ satisfies the requirements of the nonclaim statute, [sjection 733.16, F.S. 1971, F.S.A.” Id. at 668. The Fourth District answered this question in the negative. Id. In accordance with its holding, the Fourth District reversed the circuit court’s order and remanded the case with directions to deny the claimant’s motion to amend and to grant the executors’ motion to strike the claim to the extent that it asserted a claim on behalf of any person other than the claimant. Id. at 670.

In light of the absence of any other authority addressing the question before us, parts of the Fourth District’s explanation of the reasoning underlying its decision are worth quoting at length:

We hold that a “class claim” which merely designates a class of persons without identifying the members of the class by name, place of residence[,] and post office address, and without being sworn to [by] each claimant or his authorized agent or attorney simply fails to meet the clear requirements of [section 733.16, F.S.1971, F.S.A.[,] and is a brutum fulmen as concerns the unnamed members of such class. Stated differently, every claimant having a claim against the estate of a decedent, who is not within one of the several exceptions expressly provided in the statute, must in person or through agent or attorney timely file a claim in the manner prescribed by the statute or else the claim becomes void....
Inherent in the plain language of the statute is the concept that in order for a claim against the estate to be valid, it must be filed by a named claimant, in person or by his authorized agent or attorney, in the manner, form and time as prescribed. Nothing in the statute infers or implies that one may file some type of blanket claim on behalf of unnamed (and perhaps unknown) members of some designated group or class of persons and thereby effectively preserve the claim of each and every person who at a subsequent date may be able to establish that he qualifies for the designated group or class. Such would not only be too indefinite as to the identity of the claimants, but worse, it would also leave open and indefinite the time when such claimants finally would be determined and designated by name, residence[,] and post office address. Such a result is contrary to the announced public policy of this state which requires that estates of decedents be speedily and finally determined. See [] In re Brown's Estate, Fla.1960, 117 So.2d 478.

Gay, 294 So.2d at 670.

Thus the rationale of the Fourth District’s decision in Gay was twofold. First, the Gay court held that the class claim failed to comply with the requirements of the statute because it failed to identify the names and addresses of the other members of the class. Second, the court expressed concern that if class claims were allowed in probate, the delays inherent in determining the identity of the class claimants would unnecessarily delay the closing of decedents’ estates.

The 1971 version of the Florida Probate Law that was controlling in Gay contained a provision authorizing the amendment of claims similar to section 733.704 and rule 5.490(e). Former section 733.17 provided: “If a bona fide attempt to file a claim is made by any creditor or other claimant but it is defective as to form, the county judge in his discretion may permit the amendment of such claim at any time before payment.” The Fourth District’s rejection of the possibility that the claimant might be allowed to amend the class claim later when the identity of the class claimants was determined turned on its interpretation of the distinction between form and substance in the probate claims process:

[The executors] also contend[] that the court erred in allowing claimant to amend the claim pursuant to F.S. [s]ection 733.17, F.S.A.[,] so as to permit the names and addresses of those on whose behalf the claim was filed to be specified at a subsequent time when the members of the class “had been finally determined.” Whether to allow an amendment when the claim is defective in form is a matter left to the court’s discretion, and if we viewed this amendment as one of form only we would not disturb the trial court’s exercise of that discretion. However, in our judgment this was not an amendment remedying a defect in form, but rather was tantamount to permitting a claim to be initially filed on behalf of each such person at some subsequent time beyond the period set by the statute. Consequently, it is our view that this was not an amendment allowable under [sjection 733.17, F.S.1971, F.S.A.

Gay, 294 So.2d at 670. Taking their cue from the Fourth District’s analysis of the propriety of an amendment to the class claim at issue in Gay, the Sewells’ argument in support of the circuit court’s decision to allow the amendment focuses on the distinction between form and substance.

C. Form vs. Substance: In Light of the Statutory Changes, Is Gay Distinguishable?

The Sewells seek to distinguish Gay on the ground that the requirements concerning the information to be furnished in a statement of claim that appeared in former section 733.16 no longer appear in the statutes and have been moved to the Florida Probate Rules. See Fla. Prob. R. 5.490(a). In the Sewells’ view, which the circuit court shared, a failure to comply with the requirements of procedural rules is necessarily a matter of form and not of substance. Accordingly, matters of procedural form are subject to correction by subsequent amendment under rule 5.490(e). Thus the Sewells argue that Gay ⅛ rationale has been undermined and the decision is no longer good law. In their view, the omission to state the names and addresses of the class claimants is a matter of form not affecting the validity of the class claim. Instead, the omission may be corrected by an appropriate amendment as soon as the additional information becomes available.

It is true that Florida courts have adopted a liberal approach to the amendment of claims in probate to correct formal defects that do not affect the substantial rights of the parties. In the case of Farr v. Clement, 202 So.2d 613, 614 (Fla. 2d DCA 1967), cited by the circuit court in support of its decision, this court said: “Amendments to correct defects in the form of claims filed against decedents’ estates have been without exception freely allowed in Florida and is in keeping with the judicial philosophy of the courts of this State which have taken as their touchstone substance and not procedural form.” This liberal approach to the amendment of claims in probate to correct defects in form is reflected in several decisions. See, e.g., Bedell v. Wilson (In re Estate of Grist), 83 So.2d 860, 862 (Fla.1955); Black v. Walker, 140 Fla. 48, 191 So. 25, 26 (1939); First Union Nat’l Bank of Fla. v. Aftab, 689 So.2d 1137 (Fla. 4th DCA 1997). However, an amendment of a claim outside of the claims period is impermissible if it seeks to change matters of substance, e.g., the nature or amount of the claim. See Estate of Shearer ex rel. Shearer v. Agency for Health Care Admin., 737 So.2d 1229, 1231-32 (Fla. 5th DCA 1999); Grayson v. Maeder, 186 So.2d 796, 798 (Fla. 3d DCA 1966).

Like the Gay court, we think that amending a statement of claim to list hundreds of additional creditors changes a matter of substance rather than merely correcting a formal defect. Such an amendment affects the substantial rights of interested persons because it allows some creditors — but not others — to obtain a claim without filing an individual statement of claim within the required time. Thus we disagree with the view advanced by the Sewells and adopted by the circuit court that rule 5.490(e) constitutes authority for allowing an amendment to list the names and addresses of the members of the class once they are ascertained. Thus, to the extent that the class claim is defective, an amendment to cure the problem made after the applicable time limit for filing claims will be unavailing.

D. Exploring the Issue of Class Claims in Probate

1. Introduction: The Code and the Rules

Qur conclusion that Gay cannot be distinguished leads us to the question of whether the Code sheds any light on the propriety of filing a class claim. Section 738.703 addresses the subject of “Form and manner of presenting claim.” But the statute tells us only that “[a] creditor shall file a written statement of the claim.” As we have seen, rule 5.490(a) adds essential details to the statute’s bare requirement that a creditor file a written statement of claim. The rule’s requirements that the claim state the creditor’s name and address and be verified form the basis for the Personal Representative’s argument that class claims are unauthorized because they cannot meet the basic requirements of the rule.

However, rule 5.490(a) is not the last word on the subject of the proper format of claims. The Code itself broadly defines a “claim” as “a liability of the decedent, whether arising in contract, tort, or otherwise, and funeral expense.” § 731.201(4). “[A] creditor is one who holds a ‘claim.’ ” Summit Pool Supplies, Inc. v. Price, 461 So.2d 272, 273 (Fla. 5th DCA 1985). The statute’s definition of “claim” is all-encompassing, and it is certainly expansive enough to include a claim held by a class of creditors. Moreover, nothing in the Code or the Florida Probate Rules expressly bars the filing of a class claim in an estate administration proceeding. The requirements of rule 5.490 that a statement of claim be verified and state the name and address of the creditor do not expressly prohibit the filing of a class claim; those requirements simply do not address the question. Therefore, an argument can be made that the text of the Code and the rules are inconclusive on the question of the propriety of filing a class claim in an estate administration proceeding. Cf. In re Am. Reserve Corp., 840 F.2d 487, 492-93 (7th Cir.1988) (making a similar argument in the context of the Bankruptcy Code and Bankruptcy Rules).

2. The Treatment of Class Claims in Bankruptcy

In light of the absence of express guidance from the statute and the paucity of case law, we have looked beyond probate to bankruptcy law. The bankruptcy courts employ a claims process that is analogous to the handling of creditors’ claims in probate. See 11 U.S.C. §§ 501-511; Bankruptcy Rules 3001-3008. Thus the treatment of class claims in bankruptcy proceedings may illuminate our inquiry into the appropriate rule to follow with regard to the filing of class claims in probate.

Subject to certain limitations, class claims may be allowed in bankruptcy proceedings. See In re Birting Fisheries, Inc., 92 F.3d 939, 939-40 (9th Cir.1996); Reid v. White Motor Corp., 886 F.2d 1462, 1469-70 (6th Cir.1989); In re Charter Co., 876 F.2d 866, 873 (11th Cir.1989); Am. Reserve, 840 F.2d at 493. But see In re Standard Metals Corp., 817 F.2d 625, 632 (10th Cir.), vacated in part only on other grounds on rehearing, 839 F.2d 1383 (10th Cir.1987). The primary argument in favor of allowing the filing of class claims in bankruptcy is to ensure that all of the debtor’s creditors may share equally in the assets available for distribution from the bankruptcy estate:

Outside of bankruptcy, class actions aggregate claims and permit both compensation and deterrence that are otherwise impossible. The same debts should be pursued inside bankruptcy — for other creditors have no right to the higher share of the debtor’s assets they can achieve by excluding rival creditors at the threshold. The class proof of claim may be essential to discover what the bankrupt’s entire debts are, and therefore who should be paid what.

Am. Reserve, 840 F.2d at 489-90 (footnote omitted). This argument applies with equal force in probate. Among the primary goals of the probate process are collecting the decedent’s assets and providing to all of a decedent’s creditors a forum in which they may present their claims. Cf. Glidden v. Gutelius, 96 Fla. 834, 119 So. 140, 143 (1928) (“The general duties of an executor are to collect the effects of the decedent, to pay the claims against his estate, and to distribute the residue to those entitled thereto.”). A refusal to recognize class claims in probate would tend to make it more difficult for class claimants to obtain payment of their claims from the probate estate.

3. Other Considerations

The argument in favor of allowing class claims in probate based on the goal of promoting equality of distribution among all of the decedent’s creditors has some persuasive force. Nevertheless, we conclude that countervailing factors are more compelling. The rationale for our conclusion on this point stems from the absence of any legislative effort to abrogate the Fourth District’s decision in Gay for over thirty-five years.

It is within the province of the legislature to prescribe statutes providing for the orderly administration of decedent’s estates. See Twomey v. Clausohm, 234 So.2d 338, 340 (Fla.1970); see also Mudarri v. Gillespie, 226 So.2d 808, 812 (Fla.1969) (“It is apodictic that the administration of estates of decedents is a matter which is within the power of the legislature to prescribe.”). With the enactment of the Code, the legislature has exercised its prerogatives by adopting a comprehensive framework for the administration of decedent’s estates. See § 731.102 (“This code is intended as unified coverage of its subject matter.”). The Code’s provisions concerning creditors’ claims are particularly complete and detailed. See §§ 733.701-.710. Since the Code went into effect in 1976, the legislature has amended it repeatedly; a particularly extensive revision took effect in 2002. See ch. 2001-226, §§ 4 through 185,195, Laws of Fla.

Despite the Code’s comprehensive coverage of the administration of decedents’ estates in general and creditors’ claims in particular, it is silent on the subject of class claims. As we have already noted, the Fourth District’s decision in Gay is the only reported authority in Florida on the subject of the filing of class claims in probate. The Gay case was decided under the Florida Probate Law in 1974, more than thirty-five years ago. Thus it is pertinent to note “that the legislature is presumed to know the judicial constructions of a law when enacting a new version of that law.” Brannon v. Tampa Tribune, 711 So.2d 97, 100 (Fla. 1st DCA 1998) (citing Collins Inv. Co. v. Metro. Dade County, 164 So.2d 806 (Fla.1964)). “Furthermore, the legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed in the new version.” Id. (citing Deltona Corp. v. Kipnis, 194 So.2d 295 (Fla. 2d DCA 1966)). Thus, in the absence of any reference to the filing of class claims in the Code either when it was enacted or in the multiple subsequent amendments to it, the legislature must be presumed to have adopted the Fourth District’s holding in Gay that class claims may not be filed in probate. Accordingly, we conclude that any change in the probate claims process to allow the filing of class claims must come from the legislature instead of through a judicial construction of the Code by this court that would be at odds with the Fourth District’s holding in Gay.

4. Equity, Fair Play, and Substantial Justice

Before concluding, we address the Sewells’ argument that it would be inequitable to permit the Decedent’s estate to escape liability for his alleged conduct by disallowing the class claim. In their answer brief, the Sewells state:

The fraudulent conduct described in the Complaint has caused substantial harm to hundreds of unsophisticated investors, mainly retirees and many others living on a fixed or modest income, who now face foreclosure and financial ruin as a result of [the Decedent’s] actions. It would do tremendous violence to the notion of justice to allow [the Decedent’s] estate to avoid liability through its hypertechnical legal argument....

Based on this argument, the Sewells conclude that the result we reach here will “offend traditional notions of fair play and substantial justice.” We disagree.

Of course, we cannot assess the merits of the Sewells’ class claim against the Decedent’s estate and the other defendants. However, we are convinced that the result we reach in this case is not one that “offends traditional notions of fair play and substantial justice.” The class claims that have been asserted in the federal action are not based on little-known facts of which the members of the class might remain ignorant. Moreover, the class claims are not for small amounts that do not warrant the attention of the individual class members and that require a class champion to pursue them efficiently. On the contrary, the Sewells have alleged in the Complaint that the individual members of the class face substantial financial losses resulting from the defendants’ actions. Thus, to the extent that the class members “face foreclosure and financial ruin as a result of [the Decedent’s] actions,” they should be acutely aware of the general outline of the facts that give rise to their claims.

Under these circumstances, it does not seem unfair to us to require the individual class claimants to take the relatively simple step of filing a statement of claim with the probate court in order to preserve their claims against the Decedent. A statement of claim may be filed on a simple, one-page form that is designed to be prepared and filed by nonlaw-yers. “[T]he filing of a statement of claim against an estate is not an appearance in court or the filing of a ‘pleading’ and therefore is not the practice of law.” Summit Pool Supplies, 461 So.2d at 274. No filing fee may be imposed on a creditor for filing a statement of claim. § 733.703(1). If— speaking hypothetically — the maintenance man who mowed the Decedent’s lawn must file a statement of claim to recover a relatively small sum for the final month’s lawn service, then there is nothing inequitable about requiring the individual members of the class to file statements of claim to preserve their claims to the substantially larger amounts alleged to be due them. Furthermore, despite the disallowance of the class claim, the class representatives retain their rights to pursue the class action in federal court on behalf of the putative class members against the remaining defendants.

VI. CONCLUSION

For the foregoing reasons, we reverse the circuit court’s order to the extent that it denied the Personal Representative’s motion to strike the class claim and granted the Sewells’ motion to amend their claim. We remand this case to the circuit court for the entry of an order striking the Sewells’ statement of claim to the extent that it attempts to assert claims on behalf of persons other than themselves.

Reversed and remanded with directions.

DAVIS, J., and FULMER, CAROLYN K., Senior Judge, Concur.

      . The Complaint named three persons in addition to the Sewells as plaintiffs and class representatives. These persons are Moses Eshkenazi, Therese Eshkenazi, and Henriette Eshkenazi.

      . In her motion to strike, the Personal Representative contended that the Sewells’ claim was defective because it stated that it was a contingent claim but failed to state the nature of the uncertainly as required by rule 5.490(a)(5). The Personal Representative waived this argument at the hearing.

      . The Fourth District decided Gay on May 24, 1974. The Code was originally enacted as part of chapter 74-106, Laws of Florida, to take effect in accordance with section four of the Act on July 1, 1975. Chapter 74-106 was approved by the governor on May 31, 1974, and filed in the office of the secretary of state on the same day. In chapter 75-220, the legislature made extensive amendments to the Code. Under section 113 of chapter 75-220, the effective date of the Code was postponed until January 1, 1976. See § 731.011, Fla. Stat. (2007).

      . Section 733.16(1) required, in pertinent part, that a "claim or demand ... shall be in writing and contain the place of residence and post-office address of the claimant, and shall be sworn to by the claimant, his agent or attorney.”

      . The filing of class claims in bankruptcy is a complex subject. For an introduction to this topic, see Leonard H. Gerson, Class Proofs of Claim and Class Actions in Bankruptcy: Clarifying the Law, Improving the Process, and Expanding the Use of Class Actions, 17 J. Bankr. L. & Prac. 6 Art. 2 (2008).

      . Some of the individual class members may have filed claims against the Decedent's estate. The "Case Summary” included in the record on appeal reflects the filing of numerous claims in the estate. However, our record does not include copies of the individual claims.


author: SILBERMAN, Judge.

text:
    Orlando HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5033.
    District Court of Appeal of Florida, Second District.
    May 7, 2010.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Orlando Hernandez appeals from the revocation of his probation and resulting sentences for burglary of a structure and grand theft. Because the trial court found that Hernandez violated his probation based solely on his arrest for a new offense, we reverse the revocation order and resulting sentences and remand for further proceedings.

Hernandez was on thirty-six months’ probation for burglary of a dwelling and grand theft. Condition five of his probation required that he “live and remain at liberty without violating the law.” At his revocation hearing, Hernandez admitted to violating condition five by being arrested on July 23, 2008, for an armed robbery that occurred on April 16, 2008. Defense counsel specified that Hernandez was admitting the arrest but “not admitting to any facts or circumstances of that Condition Five violation.”

The State requested that the trial court consider testimony regarding the seriousness of the armed robbery charge for purposes of sentencing on the revocation. The defense contended that none of the facts of the armed robbery should be considered in sentencing on the revocation because Hernandez had not admitted guilt or been convicted on the new offense. The trial court stated, “Well, if he admits to being arrested and to a Condition Five, he’s not admitting guilt to the offense; to the substantive of offense [sic]. I can still take testimony concerning sentencing.”

After hearing testimony, the trial court accepted Hernandez’s admission to being arrested, revoked his probation, and imposed concurrent sentences of forty-two months in prison. The written order reflects that the court found a violation of condition 5 based on Hernandez’s admission as to his arrest. Hernandez correctly contends that we must reverse because his arrest cannot be the sole basis for the revocation of his probation.

“The proper standard for finding a new law violation is whether a preponderance of the evidence establishes that the probationer committed the charged offense or offenses.” Robinson v. State, 907 So.2d 1284, 1287 (Fla. 2d DCA 2005). In Robinson, this court reversed a revocation of probation where “the trial court stated that the issue was whether Mr. Robinson was arrested for the new law violations, not whether he was guilty or not guilty of the charges.” Id. at 1286. This court has recognized that “ e[t]he Florida Statutes do not authorize, nor would our constitution permit, a permanent revocation of probation based solely upon proof of an arrest during the probationary period.’ ” Sharpston v. State, 895 So.2d 1225, 1226 (Fla. 2d DCA 2005) (quoting Hines v. State, 358 So.2d 183, 185 (Fla.1978)). Here, the trial court revoked Hernandez’s probation based solely upon his arrest.

The State contends that the testimony at the revocation hearing concerning the armed robbery, which was presented for sentencing purposes, is sufficient to prove by a preponderance of the evidence that Hernandez committed the armed robbery. However, it is clear that the parties and the trial court were operating under an incorrect standard that an arrest was sufficient for the trial court to find a violation of probation. See Robinson, 907 So.2d at 1287. As acknowledged in Sharpston, 895 So.2d at 1226, our constitution and statutes do not allow a revocation of probation based solely upon an arrest. Moreover, just as occurred in Robinson, the trial court here “never reached the ultimate issue of whether the State had proven the violation by the greater weight of the evidence.” Robinson, 907 So.2d at 1287.

Because the trial court incorrectly revoked Hernandez’s probation based on his admission that he had been arrested, we reverse the revocation order and resulting sentences and remand for further proceedings. On remand, the State may attempt to prove a violation based on the same circumstances if the probationary period has not expired. See Sharpston, 895 So.2d at 1226.

Reversed and remanded.

ALTENBERND, J., and FULMER, CAROLYN K., Senior Judge, Concur.


author: LaROSE, Judge.

text:
    STATE of Florida, Appellant, v. Michael RAHAL, Appellee.
    No. 2D09-1786.
    District Court of Appeal of Florida, Second District.
    May 7, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    Sharon Morgan Vollrath, Tampa, for Appellee.
   LaROSE, Judge.

The State appeals Michael Rahal’s downward departure sentence after the trial court granted his motion to mitigate his 34.5-month prison sentence for perjury and reduced his sentence to five years’ probation. See Fla. R.Crim. P. 3.800(c). The State raises several issues, none of which we need to address because Mr. Rahal’s counsel concedes ineffective assistance of counsel in the sentencing process. Based on the record before us, we reverse and remand for a new evidentiary hearing on Mr. Rahal’s motion to mitigate his sentence. See § 921.0026(2), Fla. Stat. (2004); State v. Scherber, 918 So.2d 423, 424 (Fla. 2d DCA 2006); State v. Ayers, 901 So.2d 942, 944-45 (Fla. 2d DCA 2005); Rafferty v. State, 799 So.2d 243, 248 (Fla. 2d DCA 2001). The trial court may again depart downward from the guidelines if it finds that the defense has proven legally sufficient reasons.

Reversed and remanded.

CASANUEVA, C.J., and WHATLEY, J., Concur.