author: PER CURIAM.

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT NO. 2009-01.
    No. SC09-622.
    Supreme Court of Florida.
    Jan. 7, 2010.
    Judge Lisa T. Munyon, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Ninth Judicial Circuit, Orlando, Florida, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions, seeking authorization for publication and use. The Committee proposes new instruction 3.3(g), Bifurcated Trial Instruction — Phase Two, as well as amendments to the following instructions: 3.6(f), Justifiable Use of Deadly Force; 3.6(g), Justifiable Use of Non-deadly Force; 3.6(h), Justifiable Use of Force by Law Enforcement Officer; and 11.14(e), Failure to Register as a Sexual Offender. The Committee published the proposals for comment in The Florida Bar News prior to submission to the Court. Upon review of the Committee’s proposals and comments received, we authorize the instructions for publication and use as proposed.

New jury instruction 3.3(g), Bifurcated Trial Instruction — Phase Two, is based upon the Court’s decision in State v. Harbaugh, 754 So.2d 691 (Fla.2000). In Harbaugh, a felony DUI case, we held that a bifurcated proceeding was necessary when the defendant is convicted of a substantive offense and prior convictions create a reclassification of the statutory penalty, thereby requiring a jury finding. In such a bifurcated proceeding, the jury must make the finding that the defendant had previously been convicted of the qualifying offenses for reclassification of the current offense. Id. at 694. Instruction 3.3(g) is intended to ensure that a jury makes the findings required by Harbaugh.

We amend instruction 3.6(f), Justifiable Use of Deadly Force, and instruction 3.6(g), Justifiable Use of Non-deadly Force, to conform with statutory changes brought about by the Legislature’s amendment to section 776.051, Florida Statutes (2008). See Ch. 2008-67, § 1, Laws of Fla. That legislation was in response to Tillman v. State, 934 So.2d 1263 (Fla.2006). In Tillman, the Court held that the offense of using force to resist an arrest was limited to situations where the law enforcement officer was effecting an arrest, and not to other types of police-citizen encounters. Id. at 1266. The plain language of section 776.051 dictated such limited results, particularly since sections 784.07 and 843.01, Florida Statutes (2005), which defined the offenses of battery on a law enforcement officer and resisting an officer with violence, respectively, included the alternative language that the state must prove the officer was “engaged in the lawful performance of his or her duties” or “in the lawful execution of any legal duty.” Tillman, 934 So.2d at 1266 (quoting §§ 784.07(2), 843.01). Without such alternative language that appears in sections 784.07 and 843.01, section 776.051 could not be extended to those situations where a law enforcement officer was not in the process of making an actual arrest. In chapter 2008-67, section 1, the Legislature expanded section 776.051(1) to include as the nonjustifiable use of force resisting a law enforcement officer who is engaged in the execution of a legal duty where the officer was acting in good faith. The amendments to instructions 8.6(f) and 3.6(g) include that new language reflecting amended section 776.051(1). Instructions 3.6(f) and 3.6(g) are further amended to include citations to Novak v. State, 974 So.2d 520 (Fla. 4th DCA 2008), clarifying that the “no duty to retreat” rule applies to situations where the defendant was not engaged in unlawful conduct beyond that for which he asserts justification.

In addition, instruction 3.6(f) is also amended to include the statutory exceptions in section 776.013(2), Florida Statutes (2008), which may preclude giving the instruction on justifiable use of deadly force.

Instruction 3.6(h), Justifiable Use of Force by Law Enforcement Officer, is amended to reflect that force by a law enforcement officer or person assisting him or her is prohibited both in the case of making an unlawful arrest and in the unlawful execution of a legal duty. See § 776.051(2), Fla. Stat. (2009).

Instruction 11.14(e), originally authorized in 2008, see In re Standard Jury Instructions in Criminal Cases-Report No. 2007-4, 983 So.2d 531 (Fla.2008), is based upon section 943.0435(7), Florida Statutes (2009). Subsection (7) requires, in pertinent part, that

[a] sexual offender who intends to establish residence in another state or jurisdiction other than the State of Florida shall report in person to the sheriff of the county of current residence within 48 hours before the date he or she intends to leave this state to establish residence in another state or jurisdiction. The notification must include the address, municipality, county, and state of intended residence.

The amendment to instruction 11.14(e) clarifies that an offender may commit the offense by either reporting to the sheriff but failing to provide an address, or by failing to report at all and leaving the jurisdiction of the State of Florida.

Having considered the Committee’s report and comments, we hereby authorize the publication and use of the instructions as they appear in the attached appendix. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining, and deleted language is struck through. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

3.3(g) BIFURCATED TRIAL INSTRUCTION — PHASE TWO

Give in phase two of a bifurcated jury trial in which the State alleges the Defendant is guilty of a felony based upon a second, or subsequent conviction, (e.g. Felony Battery; Felony DUI-BUI; Felony Driving with License Cancelled, Revoked, or Suspended; Felony Petit Theft; Felony Voyeurism; etc.)

Note to Judge: Review relevant statutes to determine whether an adjudication of guilt is necessary to constitute a conviction.

You have found (defendant) guilty of (insert name of charged offense). You must now determine beyond a reasonable doubt whether:

Give a orb as applicable.
a. (Defendant) was previously convicted of (insert name of charged offense) prior to (insert date of charged offense in this case).
b. (Defendant) was previously convicted of (insert name of charged offense) (insert number of prior convictions alleged in indictment or information) times.

Comment

The State must prove the prior conviction(s), unless waived, or stipulated to, by the defense, beyond a reasonable doubt in phase two of the bifurcated trial. The State and the court should accept the defendant’s stipulation to the prior conviction(s). State v. Harbaugh, 754 So.2d 691, 694 (Fla.2000).

This instruction was adopted in 2010,

3.6(f) JUSTIFIABLE USE OF DEADLY FORCE

Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence.

Read in all cases.

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly force.

Definition.

“Deadly force” means force likely to cause death or great bodily harm.

Give if applicable. § 782.02, Fla. Stat.

The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:

1. another’s attempt to murder [him] [her], or
2. any attempt to commit (applicable felony) upon [him] [her], or
3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her].

Insert and define applicable felony that defendant alleges victim attempted to commit.

Give if applicable. §§ 776.012, 776.031, Fla. Stat.

A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent

1. imminent death or great bodily harm to [himself] [herself] or another, or

2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another.

Insert and define applicable forcible felony that defendant alleges victim was about to commit. Forcible felonies are listed in § 776.08, Fla. Stat.

Aggressor. § 776.04-1, Fla. Stat.

However, the use of deadly force is not justifiable if you find:

Give only if the defendant is charged with an independent forcible felony. See Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002).

1. (Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony); or

Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. Forcible felonies are listed in § 776.08, Fla. Stat.

2. (Defendant) initially provoked the use of force against [himself] [herself], unless:

a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant).
b. In good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.

Force in resisting a law enforcement officer arrest. § 776.051(1), Fla. Stat.

A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she whe-is known-to-be, or reasonably appears, to be a law enforcement officer.

Give if applicable.

However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another), but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla. Stat, may need to be given in connection with this instruction.

Read in all cases.

In deciding whether defendant was justified in the use of deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

No duty to retreat. § 776.013(3), Fla. Stat. See Novak v. State 974 So.2d 520

(Fla. 4th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification.

If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.

Define applicable forcible felony from list in § 776.08, Fla. Stat. that defendant alleges victim was about to commit.

Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(2)(a)-(d), Fla. Stat. See exceptions — m—§ 776.013(2), — Fla-.—Stat.which may negate-the-giving-of -this instruction^

If the defendant was in a(n) [dwelling] [residence] [occupied vehicle] where [he] [she] had a right to be, [he] [she] is presumed to have had a reasonable fear of imminent death or great bodily harm to [himself] [herself] [another] if (victim) had [unlawfully and forcibly entered] [removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.

Exceptions to Presumption of Fear. § 776.013(2)(a)-(d), Fla. Stat. Give as applicable.

The presumption of reasonable fear of imminent death or great bodily harm does not apply if:

a. the person against whom the defensive force is used has the right to be in [or is a lawful resident of the [dwelling] [residence]] [the vehicle], such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
b. the person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
c. the person who uses defensive force is engaged in an unlawful activity or is using the [dwelling] [residence] [occupied vehicle] to further an unlawful activity; or
d. the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter a [dwelling] [residence] [vehicle] in the performance of [his] [her] official duties and the officer identified [himself] [herself] in accordance with any applicable law or the person using the force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer. If requested, give definition of “law enforcement officer from § 94,3.10(W, Fla. Stat.,
§ 776.013a), Fla. Stat.

A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

Definitions. Give if applicable. § 776.013(5), Fla. Stat.

As used with regard to self defense:

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Define applicable forcible felony that defendant alleges victim was about to commit.

Prior threats. Give if applicable.

If you find that the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim), then the defendant had the right to arm [himself] [herself]. However, the defendant cannot justify the use of deadly force, if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty, although as previously explained if the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat.

Reputation of victim. Give if applicable.

If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

Physical abilities. Read in all cases.

In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).

Read in all cases.

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.

However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

Comment

This instruction was adopted in 1981 and was amended in 1985 [477 So.2d 985], 1999 [732 So.2d 1044], 2000 [789 So.2d 954], 2005 [911 So.2d 766], 2006 [930 So.2d 612], and 2010.

3.6(g) JUSTIFIABLE USE OF NON-DEADLY FORCE

Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence.

Read in all cases.

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of non-deadly force.

Definition.

“Non-deadly” force means force not likely to cause death or great bodily harm.

In defense of person. § 776.012, Fla. Stat. Give if applicable.

(Defendant) would be justified in using non-deadly force against (victim) if the following two facts are proved:

1. (Defendant) must have reasonably believed that such conduct was necessary to defend [himself] [herself] [another] against (victim’s) imminent use of unlawful force against the [defendant] [another person].
2. The use of unlawful force by (victim) must have appeared to (defendant) to be ready to take place.

In defense of property. § 776.031, Fla. Stat. Give if applicable.

(Defendant) would be justified in using non-deadly force against (victim) if the following three facts are proved:

1. (Victim) must have been trespassing or otherwise wrongfully interfering with land or personal property.
2. The land or personal property must have lawfully been in (defendant’s) possession, or in the possession of a member of [his] [her] immediate family or household, or in the possession of some person whose property [he] [she] was under a legal duty to protect.
3. (Defendant) must have reasonably believed that [his] [her] use of force was necessary to prevent or terminate (victim’s) wrongful behavior.

No duty to retreat (dwelling, residence, or occupied vehicle). Give if applicable.

If the defendant is in [his] [her] [dwelling] [residence] [occupied vehicle] [he] [she] is presumed to have held a reasonable fear of imminent peril of death or bodily injury to [himself] [herself] [another] if (victim) has [unlawfully and forcibly entered] [has removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.

A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

No duty to retreat (location other than dwelling, residence, or occupied vehicle). Give if applicable. See Novalc v. State 974 So.2d 520 (Fla. 4th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification.

If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.

Definitions.

As used with regard to self defense,

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Define applicable forcible felony that defendant alleges victim was about to commit

Give in all cases.

A person does not have a duty to retreat if the person is in a place where [he] [she] has a right to be.

Aggressor. § 776.041, Fla. Stat.

The use of non-deadly force is not justified if you find:

Give only if the defendant is charged with an independent forcible felony. See Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002).

1. (Defendant) was attempting to commit, committing, or escaping after the commission of a (applicable forcible felony).

Define applicable forcible felony.

2. (Defendant) initially provoked the use of force against [himself] [herself], unless:

a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using non-deadly force on (assailant).
b. In good faith, the defendant withdrew from physical contact with (assailant) and indicated clearly to (assailant) that [he] [she] wanted to withdraw and stop the use of non-deadly force, but (assailant) continued or resumed the use of force.

Force in resisting a law enforcement officer arrest. § 776.051(1), Fla. Stat.

A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she who-is known-to-be, or reasonably appears, to be a law enforcement officer.

Give the following instruction if applicable.

However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla. Stat, may need to be given in connection with this instruction.

Read in all cases.

In deciding whether the defendant was justified in the use of non-deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

Reputation of victim. Give if applicable.

If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

Physical abilities. Read in all cases.

In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).

Read in all cases.

If, in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force, you should find the defendant not guilty.

However, if from the evidence you are convinced that the defendant was not justified in the use of non-deadly force, then you should find [him] [her] guilty if all the elements of the charge have been proved.

Comment

This instruction was adopted in 1981 and was amended in 1985 [477 So.2d 985], 1992 [603 So.2d 1175], 2005 [911 So.2d 766], 2006 [930 So.2d 612], and 2010.

3.6(h) JUSTIFIABLE USE OF FORCE BY LAW ENFORCEMENT OFFICER

In making an arrest of a felon. § 776.05, Fla. Stat. Give if applicable.

A law enforcement officer, or any person [he] [she] has summoned or directed to assist [him] [her], need not retreat from or stop efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force that [he] [she] reasonably believes necessary to defend [himself] [herself] or another from bodily harm while making the arrest. That force is also justifiable when necessarily used:

1. in retaking a felon who has escaped or
2. in arresting a felon who is fleeing from justice.

Force in making unlawful arrest or unlawful execution of a legal duty prohibited. § 776.051(2), Fla. Stat. Give if applica-bla

Use of any force by a law enforcement officer or any person summoned or directed to assist the law enforcement officer is not justified if

Give jf applicable.

1. the [arrest] [execution of a legal duty] is unlawful and

2. it is known by the officer or the person assisting [him] [her] to be unlawful.

To prevent escape from custody. § 776.07(1), Fla. Stat. Give if applicable.

A law enforcement officer or other person who has an arrested person in [his] [her] custody is justified in the use of any force that [he] [she] reasonably believes to be necessary to prevent the escape of the arrested person from custody.

To prevent escape from penal institution. § 776.07(2), Fla. Stat. Give if applicable.

A guard or other law enforcement officer is justified in the use of any force that [he] [she] reasonably believes to be necessary to prevent an escape from a penal institution of a person the officer reasonably believes is lawfully detained.

Give if applicable.

“Deadly force” includes, but is not limited to

1. firing a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm; and § 776.06(1)(a), Fla. Stat.
2. firing a firearm at a vehicle in which the person to be arrested is riding. § 776.06(1)(b), Fla. Stat.

Definition. Give if applicable.

A “firearm” is legally defined as (adapt from § 790.001(6), Fla. Stat., as required by allegations).

Comment

This instruction was adopted in 1981 and was amended in March 1989, and March 2004, and 2010.

11.14(e) FAILURE TO REGISTER AS A SEXUAL OFFENDER

(Failure to Report Change of Residence to Another State or Jurisdiction)

§ 943.0435(7), Fla. Stat.

To prove the crime of Failure to Report Change of Address as a Sexual Offender, the State must prove the following [four] [five] elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)
a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual offender” or “convicted.”

2. (Defendant) [established] [maintains] [maintained] a permanent or temporary residence in (name of county) County, Florida.

3. (Defendant) intended to leave this State to establish residence in another state or jurisdiction on (date).

Give element j or 5, or both, as applicable.

4. (Defendant) knowingly failed to report in person to an office of the sheriff in the county of [his] [her] current residence within 48 hours before the date on which [he] [she] intended to leave this state to establish residence in another state or jurisdiction.

5. (Defendant) knowingly failed to provide the address, municipality, county, and state of [his] [her] intended address, when [he] [she] reported to the sheriffs office of the county of [his] [her] current residence [his] [her] intention to establish residence in another state or jurisdiction.

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 and amended in 2010.

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.

      . The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court’s website at www. floridasupremecourt.org/jury_instructions/ instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


source: Caselaw Access Project

license: Public Domain

text:
    In re AMENDMENTS TO THE FLORIDA FAMILY LAW RULES OF PROCEDURE.
    No. SC09-1822.
    Supreme Court of Florida.
    Jan. 28, 2010.
    Jack A. Moring, Chair, Family Law Rules Committee, Crystal River, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Family Law Rules Committee has filed a “fast-track” report proposing new rule 12.742 (Parenting Coordination) and new forms 12.984 (Response by Parenting Coordinator) and 12.998 (Order of Referral to Parenting Coordinator). The committee’s proposals are meant to implement chapter 2009-180, section 2, Laws of Florida, codifying requirements for the use of parenting coordinators in family law proceedings, effective October 1, 2009.

Upon consideration of the committee’s report and the relevant legislation, we adopt new rule 12.742 and new forms 12.984 and 12.998. Rule 12.742 implements and complements the statute by addressing various procedural issues. Subdivision (a) of the proposed new rule states that it applies to parenting coordination. Subdivision (b) requires that an order referring parties to a parenting coordinator be in substantial compliance with new form 12.998. Subdivision (c) addresses the appointment of the parenting coordinator, providing that the parties may agree in writing on a parenting coordinator subject to the court’s approval, or if the parties cannot agree, the court shall appoint a coordinator “qualified by law,” and subdivision (d) requires the parenting coordinator to file a response to the appointment in substantial compliance with new form 12.984. Subdivisions (e) and (f) address the term of service of the parenting coordinator (not to exceed two years), termination of service, and appointment of a substitute parenting coordinator. Subdivision (g) sets forth the various types of authority the parenting coordinator may have with the consent of both parties, with the consent of one party, and with approval by the court. Subdivision (h) states that a parenting coordinator may not have decision-making authority to resolve substantive disputes and defines substantive dispute as one that would significantly change the quantity or decrease the quality of time a child spends with either parent or would modify parental responsibility. Subdivision (i) addresses emergency court orders as a result of the reporting of an emergency by the parenting coordinator. It permits ex parte orders “if it appears from the facts shown by the affidavit or verified report [of the parenting coordinator] that there is an immediate and present danger that the emergency situation will occur before the parties can be heard,” sets forth requirements for the order, and provides that a motion to dissolve an ex parte emergency order must be heard within five days after the movant applies for a hearing. Subdivision (j) addresses the parenting coordinator’s written communications with the court, and permits the coordinator, with service on each party, to submit a written report or other written communication regarding any non-confidential matter to the court. Subdivision (k) states that a parenting coordinator shall not be called to testify or be subject to the discovery rules unless the court makes a prior finding of good cause. It requires the requesting party to file a motion showing good cause, with service on the parenting coordinator, and to pay for the coordinator’s fees and costs incurred as a result of the motion.

As noted, the new rule requires the parenting coordinator to file a response to the appointment in substantial compliance with new form 12.984. This form allows the coordinator to either accept or decline the appointment, state that he or she satisfies the requirements for qualification or that the parties have chosen him or her by mutual consent, state that he or she is not aware of any conflict or other reason that would render him or her unable to serve, and state that he or she understands the role and authority of parenting coordinator under the order of referral and section 61.125 Florida Statutes. The committee states that the primary purpose of requiring the filing of this response by the parenting coordinator is to ensure that laypersons serving as parenting coordinators are familiar with the statute, the rule, and the order of referral to the parenting coordinator.

The new rule also requires that an order referring parties to a parenting coordinator be in substantial compliance with new form 12.998. The committee states that this new form resolves concerns about inconsistent orders currently used throughout the state. The form order ensures that there is written documentation that the court addressed domestic violence issues, if any. It recites the confidentiality provisions of the statute, thereby ensuring parties are on notice of this. The order also defines the role, responsibility, and authority of the parenting coordinator, sets forth the term of service, and addresses fees and costs.

Accordingly, the Florida Family Law Rules of Procedure are hereby amended as set forth in the appendix to this opinion. New language is underlined; deleted language is struck through. The new forms are fully engrossed and ready for immediate use. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amended rules and forms shall be effective immediately. Because the amendments were not published for comment prior to adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 12.015. FAMILY LAW FORMS

(a) Forms Adopted as Rules. The forms listed in this rule shall be adopted by the rulemaking process in Fla. R. Jud. Admin. 2.140. The Family Law Rules Committee of The Florida Bar shall propose amendments to these forms and any associated instructions. These forms shall be designated “Florida Family Law Rules of Procedure Forms.” Forms coming under this provision are:

(1) 12.900(a), Disclosure From Nonlaw-yer;

(2) 12.900(b), Notice of Limited Appearance;

(3) 12.900(c), Consent to Limited Appearance by Attorney;

(4) 12.900(d), Termination of Limited Appearance;

(5) 12.900(e), Acknowledgment of Assistance by Attorney;

(6) 12.900(f), Signature Block for Attorney Making Limited Appearance;

(7) 12.900(g), Agreement Limiting Representation;

(8) 12.900(h), Notice of Related Cases;

(9) 12.901(a), Petition for Simplified Dissolution of Marriage;

(10) 12.902(b), Family Law Financial Affidavit (Short Form);

(11) 12.902(c), Family Law Financial Affidavit;

(12) 12.902(e), Child Support Guidelines Worksheet;

(13) 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage;

(14) 12.910(a), Summons: Personal Service on an Individual;

(15) 12.913(b), Affidavit of Diligent Search and Inquiry;

(16) 12.913(c), Affidavit of Diligent Search;

(17) 12.920(a), Motion for Referral to General Magistrate;

(18) 12.920(b), Order of Referral to General Magistrate;

(19) 12.920(c), Notice of Hearing Before General Magistrate;

(20) 12.928, Family Court Cover Sheet;

(21) 12.930(a), Notice of Service of Standard Family Law Interrogatories;

(22) 12.930(b), Standard Family Law Interrogatories for Original or Enforcement Proceedings;

(23) 12.930(c), Standard Family Law Interrogatories for Modification Proceedings;

(24) 12.932, Certificate of Compliance with Mandatory Disclosure;

(25) 12.984, Response by Parenting Coordinator;

(256) 12.990(a), Final Judgment of Simplified Dissolution of Marriage; and

(27) 12.998, Order of Referral to Parenting Coordinator.

(b) [No change]

Commentary

[No change]

RULE 12.742. PARENTING COORDINATION

(a) Applicability. This rule applies to parenting coordination.

(b) Order Referring Parties to Parenting Coordinator. An order referring the parties to a parenting coordinator must be in substantial compliance with Florida Family Law Rules of Procedure Form 12.998. The order must specify the role, responsibility, and authority of the parenting coordinator

(c) Appointment of Parenting Coordinator. The parties may agree in writing on a parenting coordinator subject to the court’s approval. If the parties cannot agree on a parenting coordinator, the court shall appoint a parenting coordinator qualified by law.

(d) Response by Parenting Coordinator. The parenting coordinator must file a response accepting or declining the appointment in substantial compliance with Florida Family Law Rules of Procedure Form 12.984.

(e) Term of Service. The term of the parenting coordinator shall be as specified in the order of appointment or as extended by the court. The initial term of service shall not exceed two years. The court shall terminate the service on:

(1) The parenting coordinator’s resignation or disqualification; or

(2) A finding of good cause shown based on the court’s own motion or a party’s written motion. Good cause includes, but is not limited to the occurrence of domestic violence; circumstances that compromise the safety of any person or the integrity of the process; or a finding that there is no longer a need for the service of the parenting coordinator. The motion and notice of hearing shall also be served on the parenting coordinator.

(f) Appointment of Substitute Parenting Coordinator. If a parenting coordinator cannot serve or continue to serve, a substitute parenting coordinator may be chosen in the same manner as the original.

(g) Authority with Consent. The parenting coordinator may have additional authority with express written consent. If there has been a history of domestic violence the court must find that consent has been freely and voluntarily given.

(1) With the express written consent of both parties, the parenting coordinator may

(A) have temporary decision-making authority to resolve specific non-substantive disputes between the parties until such time as a court order is entered modifying the decision; or

(B) make recommendations to the court concerning modifications to the parenting plan or time-sharing.

(2) With the express written consent of a party, a parenting coordinator may

(A) have access to confidential and privileged records and information of that party; or

(B) provide confidential and privileged information for that party to health care providers and to any other third parties.

(3) With the express approval of the court, the parenting coordinator may

(A) have access to a child’s confidential and privileged records and information; or

(B) provide confidential and privileged information for that child to health care providers and to any other third parties.

(h) Limitation of Authority. A parenting coordinator shall not have decision making authority to resolve substantive disputes between the parties. A dispute is substantive if it would

(1) significantly change the quantity or decrease the quality of time a child spends with either parent; or

(2) modify parental responsibility.

(i)Emergency Order.

(1) Consideration by the Court. On the filing of an affidavit or verified report of an emergency by the parenting coordinator, the court shall determine whether the facts and circumstances contained in the report constitute an emergency and whether an emergency order needs to be entered with or without notice to the parties to prevent or stop furtherance of the emergency.

(2) Ex Parte Order. An emergency order may be entered d without notice to the parties if it appears from the facts shown by the affidavit or verified report that there is an immediate and present danger that the emergency situation will occur before the parties can be heard. No evidence other than the affidavit or verified report shall be used to support the emergency being reported unless the parties appear at the hearing or have received notice of a hearing. Every temporary order entered without notice in accordance with this rule shall be endorsed with the date and hour of entry, be filed forthwith in the clerk’s office, and define the injury or potential injury, state findings by the court why the injury or potential injury may be irreparable, and give the reasons why the order was granted without notice. The court shall provide the parties and attorney ad litem, if one is appointed, with a copy of the parenting coordinator’s affidavit or verified report giving rise to the ex parte order. A return hearing shall be scheduled if the court issues an emergency ex parte order.

(3) Duration. The emergency order shall remain in effect until further order.

(4) Motion to Dissolve or Modify Ex Parte Order. A motion to modify or dissolve an ex parte emergency order must be heard within 5 days after the movant applies for a hearing.

(j) Written Communication with Court. The parenting coordinator may submit a written report or other written communication regarding any nonconfiden-tial matter to the court. The parenting coordinator must contemporaneously serve each party with a copy of the written communication.

(k) Testimony and Discovery. A parenting coordinator shall not be called to testify or be subject to the discovery rules of the Florida Family Law Rules of Procedure unless the court makes a prior finding of good cause. A party must file a motion, alleging good cause why the court should allow the parenting coordinator to testify or be subject to discovery. The requesting party shall serve the motion and notice of hearing on the parenting coordinator. The requesting party shall initially be responsible for the parenting coordinator’s fees and costs incurred as a result of the motion.

Committee Note

2010 Adoption. The provisions of subdivision (k) do not abrogate the confidentiality provisions of section 61.125, Florida Statutes. An exception to confidentiality must apply before invoking this subdivision of the rule.

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.984, RESPONSE BY PARENTING COORDINATOR (1/10)

When should this form be used?

A person appointed as a parenting coordinator must accept or decline the appointment under Florida Family Law Rule of Procedure 12.742(d). If you accept the appointment, you must complete paragraphs 1(a) and 2 and sign it. If you decline the appointment, you must complete only paragraph 1(b) and sign the form. This form should be typed or printed in black ink.

Important Consideration Before Responding.

A Qualified Parenting Coordinator or other licensed mental health professional under Chapter 490 or 491, Florida Statutes, shall abide by the ethical and other professional standards imposed by his or her licensing authority, certification board, or both, as applicable.

A person that is not a Qualified Parenting Coordinator or a licensed mental health professional under Chapter 490 or 491, Florida Statutes, shall not accept an appointment to serve as parenting coordinator in a matter that presents an apparent or undisclosed conflict of interest. A conflict of interest arises when any relationship between the parenting coordinator and either party compromises or appears to compromise the parenting coordinator’s ability to serve. The burden of disclosure of any potential conflict of interest rests on the parenting coordinator. Disclosure shall be made as soon as practical after the parenting coordinator becomes aware of the potential conflict of interest. If a parenting coordinator makes an appropriate disclosure of a conflict of interest or a potential conflict of interest, he or she may serve if all parties agree. However, if a conflict of interest substantially impairs a parenting coordinator’s ability to serve, the parenting coordinator shall decline the appointment or withdraw regardless of the express agreement of the parties.

A parenting coordinator shall not provide any services to either party that would impair the parenting coordinator’s ability to be neutral.

What should I do next?

After completing and signing this form, you must file the original with the clerk of the circuit court in the county in which the action is pending and keep a copy for your records.

You must mail or hand-deliver a copy of this form to the attorney(s) for the parents or, if not represented by an attorney, to the parents.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. For more information, see section 61.125, Florida Statutes, Florida Family Law Rule of Procedure 12.742, and the Order of Referral to Parenting Coordinator, Florida Family Law Rules of Procedure Form 12.998.

Special notes

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete. Florida Family Law Rules of Procedure Form 12.984, Response by Parenting Coordinator (1/10)

IN THE CIRCUIT COURT OF THE _ JUDICIAL CIRCUIT, IN AND FOR _ COUNTY, FLORIDA

Petitioner,

And

Respondent.

Case No: _

Division: _

RESPONSE BY PARENTING COORDINATOR

I, {name} _ notify the Court and affirm the following:

1. Acceptance.

[Choose only one]

a. _I accept the appointment as parenting coordinator.

b. _I decline the appointment as parenting coordinator.

2. Qualifications.

[Choose only one]

a. _ I meet the qualifications in section 61.125(4), Florida Statutes.

b. _I do not meet the qualifications in section 61.125(4), Florida Statutes. However, the parties have chosen me by mutual consent and I believe I can perform the services of a parenting coordinator because: _

3.I am not aware of any conflict, circumstance, or reason that renders me unable to serve as the parenting coordinator in this matter and I will immediately inform the court and the parties if such arises.

4.I understand my role, responsibility, and authority under the Order of Referral to Parenting Coordinator, Florida Family Law Rules of Procedure Form 12.998(a) and section 61.125, Florida Statutes.

I hereby affirm the truth of the statements in this acceptance and understand that if I make any false representations in this acceptance, I am subject to sanctions by the Court.

Date

Signature

Printed Name:_

Address:_

City, State, Zip:_

Telephone Number:

Professional License # (if applicable)

Professional Certification # (if applicable)_

Copies to: Attorney for Parent # 1 OR Parent # 1 if not represented by Counsel

Attorney for Parent #2 OR Parent # 2 if not represented by Counsel

IF A NONLAWYER HELPED YOU FILL OUT THIS FORM, HE/SHE MUST FILL IN THE BLANKS BELOW: [fill in all blanks]

I, {full legal name and trade name of nonlawyer}_, a non-lawyer, whose address is {street} -, {city} _, {state} _, {phone} _, helped {name} _, who is Florida Family Law Rules of Procedure Form 12.998, Order of Referral to Parenting Coordinator (1/10)

IN THE CIRCUIT COURT OF THE _ JUDICIAL CIRCUIT, IN AND FOR _ COUNTY, FLORIDA

Case No: -

Division: _

Petitioner,

And

Respondent.

ORDER OF REFERRAL TO PARENTING COORDINATOR

The Court considered the () motion of the court, () joint motion of the parties, () motion of a party, reviewed the court file, and considered the testimony presented. Based on this information, the court FINDS that:

A. Appropriateness of Process. This matter is appropriate for parenting coordination and it is in the best interest of the child(ren).

B. Parenting Coordination Process.

Parenting coordination is a child-focused alternative dispute resolution process whereby a parenting coordinator assists the parents in creating or implementing their parenting plan by facilitating the resolution of disputes, providing education and making recommendations to the parents; and, with the prior consent of the parents and approval of the court, making limited decisions within the scope of this order of referral.

C. Parenting Coordinator. A parenting coordinator is an impartial third person whose role is to assist the parents in successfully creating or implementing a parenting plan.

D. Selection of Parenting Coordinator. The parenting coordinator was selected by:

[Choose only one]
_ parties’ agreement.
_ the court.

E. History of Domestic Violence. Based on testimony and evidence presented and a review of related court records, the court has determined:

[Choose all that apply]
_ There is no history of domestic
violence.
_ There has been a history of domestic violence, and:
_ Each party has had an opportunity to consult with an attorney or domestic violence advocate before this court has accepted the parties’ consent.
_ Each party has consented to this referral and the consent has been given freely and voluntarily-

It is therefore, ORDERED:

1. Parenting Coordinator. The parties are referred to the following parenting coordinator for an initial period of_months:
Name: _
Address: _
Telephone: _
Fax Number: _
a. The parenting coordinator shall file a response to this Order within 30 days either accepting or declining the appointment. The response to the appointment must be in substantial compliance with Florida Family Law Rules of Procedure Form 12.984.
b.The parties or their attorneys must provide to the parenting coordinator copies of all pleadings and orders related to domestic violence and any other pleadings and orders requested by the parenting coordinator related to parenting coordination.

2. Meetings. Unless prohibited herein as a domestic violence safeguard or by another court order, the parenting coordinator may meet with the parties and/or children) together or separately, in person or by any electronic means.

3. Domestic Violence Safeguards. The parties shall adhere to all provisions of any injunction for protection or conditions of bail, probation, or a sentence arising from criminal proceedings. In addition to any safety measures the parenting coordinator deems necessary, the following domestic violence safeguards must be implemented:

[Choose all that apply]
_ None are necessary.
_ No joint meetings
_ No direct negotiations
_ No direct communications
_ Other:

4.Role, Responsibility, and Authority of Parenting Coordinator. The parenting coordinator shall have the following role, responsibility, and authority:

a. Assisting the parents in creating and implementing a parenting plan.
b. Facilitating the resolution of disputes regarding the creation or implementation of the Parenting Plan.
c. Recommending to the parents strategies for creating or implementing the Parenting Plan. Such recommendations may include that one or both parents avail themselves of accessible and appropriate community resources, including, but not limited to, random drug screens, parenting classes, and individual psychotherapy or family counseling, if there is a history or evidence that such referrals are appropriate.
d. Recommending to the parents changes to the Parenting Plan.
e. Educating the parties to effectively:
i. Parent in a manner that minimizes conflicts;
ii. Communicate and negotiate with each other and their child(ren);
iii. Develop and apply appropriate parenting skills;
v.Understand principles of child development and issues facing child(ren) when their parents no longer live together;
v. Disengage from the other parent when engagement leads to conflicts and non-cooperation;
vi. Identify the sources of their conflict with each other and work jointly to minimize conflict and lessen its deleterious effects on the ehild(ren); and,
vii. Allow the children) to grow up free from the threat of being caught in the middle of their parents’ disputes.
f. Reporting or communicating with the court concerning nonconfiden-tial matters as provided in paragraph 6 of this order.
g. Communicating with the parties and their children), separately or together, in person or by telephone, unless otherwise prohibited by court order or applicable law.

5. Fees and Costs for Parenting Coordination.

[Choose all that apply]
a._The parties have consented to this referral to parenting coordination.
_ This order is without the consent of the parties, but the court has determined that the parties have the financial ability to pay the parenting coordination fees and costs.

b._ The court allocates payment of fees and costs for parenting coordination as follows:

_ % shall be paid by the Father.
_ % shall be paid by the Mother.
_ Other:
If a party has caused the parenting coordinator to expend an unreasonable and unnecessary amount of time, that party may be solely responsible for payment of the parenting coordinator’s fees and costs for such time expended. Failure to pay the parenting coordinator’s fees and costs in a timely manner may subject the party to sanctions for contempt of court.

6. Confidentiality. All communications made by, between, or among the parties and the parenting coordinator during parenting coordination sessions are confidential. The parenting coordinator and each party may not testify or offer evidence about communications made by a party or the parenting coordinator during the parenting coordination sessions, except if:

a. Necessary to identify, authenticate, confirm, or deny a written agreement entered into by the parties during parenting coordination.
b. The testimony or evidence is necessary to identify an issue for resolution by the court without otherwise disclosing communications made by any party or the parenting coordinator.
c. The testimony or evidence is limited to the subject of a party’s compliance with the order of referral to parenting coordination, orders for psychological evaluation, counseling ordered by the court or recommended by a health care provider, or for substance abuse testing or treatment.
d. The parenting coordinator reports that the case is no longer appropriate for parenting coordination.
e. The parenting coordinator is reporting that he or she is unable or unwilling to continue to serve and that a successor parenting coordinator should be appointed.
f. The testimony or evidence is necessary pursuant to section 61.125(5)(b) or section 61.125(8), Florida Statutes.
g. The parenting coordinator is not qualified to address or resolve certain issues in the case and a more qualified coordinator should be appointed.
h. The parties agree that the testimony or evidence be permitted.
i. The testimony or evidence is necessary to protect any person from future acts that would constitute domestic violence under Chapter 741, Florida Statutes; child abuse, neglect, or abandonment under Chapter 89, Florida Statutes; or abuse, neglect, or exploitation of an elderly or disabled adult under Chapter 825, Florida Statutes.

7. Agreement on Nonconfidentiality. The parties can agree to waive confidentiality of a specific communication or all communications. The waiver must be in writing, signed by the parties and their respective counsel. The waiver shall be filed with the court and a copy served on the parenting coordinator. Either party may revoke their waiver of confidentiality by providing written notice signed by the party. The revocation shall be filed with the court and a copy served on the other party and the parenting coordinator.

8. Scheduling. Each party shall contact the parenting coordinator within 10 days of the date of this order to schedule the first appointment. The parenting coordinator shall determine the schedule for subsequent appointments.

ORDERED ON {date}

CIRCUIT JUDGE

COPIES TO:

Parenting Coordinator

Address: _

Name of Party:

Counsel for Party:

Address of Counsel:

Name of Party:

Counsel for Party:

Address of Counsel:

Guardian ad Litem:

Address of GAL:

      . Minor editorial and grammatical corrections have been made to the new forms.

      . Upon supplemental petition by the committee, we also amend rule 12.015 (Family Law Forms) to add new forms 12.984 and 12.998 to the list of Family Law Rule of Procedure Forms contained therein.

      . An original and nine paper copies of all comments must be filed with the Court on or before March 29, 2010, with a certificate of service verifying that a copy has been served on the committee chair, Jack A. Moring, 7655 W. Gulf to Lake Hwy, Suite 12, Crystal River, FL 34429-7910, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The committee chair has until April 19, 2010, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


author: SILBEKMAN, Judge.

text:
    Brian Lee SUNDIN, Doc. # R48503, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2887.
    District Court of Appeal of Florida, Second District.
    July 15, 2009.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   SILBEKMAN, Judge.

Brian Lee Sundin seeks review of his judgment and sentence for possession of cocaine and possession of drug paraphernalia. We reverse because the State failed to establish a prima facie case on both charges.

At trial, Detective Ryan Kmiee testified that his narcotics unit was conducting undercover drug purchases at the Value Lodge on U.S. 19 in New Port Richey on April 25, 2007. Detective Kmiee was working as backup when he observed Sun-din cross U.S. Highway 19 on foot and enter room 221 of the Value Lodge. Detective Kmiee did not testify regarding the manner in which Sundin gained entry. Two days later, Detective Kmiee returned and set up surveillance on room 221. He did not ascertain who had rented the room, but he observed Sundin going in and out of room 221 to smoke cigarettes on the balcony. Detective Kmiee knew that Sundin had an active warrant for his arrest, and he contacted Officer Angelini from the New Port Richey Police Department to effectuate the arrest.

Officer Angelini made contact with Sun-din, and Detective Kmiee followed the officer into room 221. Sundin was lying on one of the room’s two queen-size beds, and a female named Diane Onicus was seated on the end of the other queen-size bed. Detective Kmiee observed a type of glass pipe commonly used to smoke cocaine on a nightstand between the beds. The pipe was about a foot away from Sundin, and it was within arm’s reach.

Upon observing the pipe in plain view, Detective Kmiee seized it and conducted a field test on the residue inside. The residue tested positive for cocaine, and the FDLE chemist confirmed the result. Sun-din denied that the pipe belonged to him, and Onicus denied any knowledge of the pipe.

After the State rested its case, Sundin moved for a judgment of acquittal. Sun-din argued the State failed to establish that he was in constructive possession of the pipe. The State contended that the pipe was in Sundin’s actual possession because it was within his arm’s reach and exclusive control. The court denied the motion.

All possession crimes may be either actual or constructive. Chicone v. State, 684 So.2d 736, 738 n. 2 (Fla.1996). The first question before this court is whether Sundin was in actual possession of the pipe because it was within his arm’s reach in the hotel room. Possession is actual when the contraband is (1) in the defendant’s hand or on his person, (2) in a container in the defendant’s hand or on his person, or (3) within the defendant’s “ ‘ready reach’ ” and the contraband is under his control. Harris v. State, 954 So.2d 1260, 1262 (Fla. 5th DCA 2007). If the defendant has control over the premises where the contraband is found in plain view, then the defendant’s control over the contraband may be inferred. Id.

In this case, the State established that the pipe was within Sundin’s ready reach but failed to establish that Sundin had control over the pipe or room 221. The State presented no evidence linking Sundin to the pipe other than his mere proximity to it. Additionally, the State did not present sufficient evidence of Sundin’s control of the premises to support an inference of control over the contraband. While Detective Kmiec saw Sundin enter and exit room 221 on a few occasions, Detective Kmiec did not see Sundin use a key to enter the hotel room or otherwise ascertain that Sundin had rented the room. The State’s evidence at best establishes that Sundin was a visitor in the hotel room and not an actual occupant. Cf. J.S.M. v. State, 944 So.2d 1143, 1144 (Fla. 2d DCA 2006) (holding that the State failed to prove that the defendant was an occupant of the hotel room because “no evidence proved how long J.S.M. had been at the hotel, whether he rented the room, or whether he jointly occupied it with the person who did”).

Having determined that the State did not prove Sundin was in actual possession of the pipe, we turn to the issue of constructive possession. In order to establish constructive possession, the State must prove that the defendant had dominion and control over the contraband and knew the contraband was within his presence. Robinson v. State, 975 So.2d 593, 595 (Fla. 2d DCA 2008). If the State proves that the contraband was in plain view, then the defendant’s knowledge of the contraband’s presence is established. Brown v. State, 428 So.2d 250, 252 (Fla.1983). However, the issue of control is not established by the fact that the contraband is in plain view unless the accused is an occupant or owner. Id. In the event the accused is a mere visitor in jointly possessed premises, then the State must establish control of contraband in plain view by independent evidence. Taylor v. State, 319 So.2d 114, 116 (Fla. 2d DCA 1975).

As we stated previously, the State’s evidence established nothing more than that Sundin was a visitor of a resident of room 221. Without independent proof of Sun-din’s control over the pipe, the State failed to establish his constructive possession of the cocaine or paraphernalia. See J.S.M., 944 So.2d at 1144-45 (holding that the State failed to prove that a hotel visitor had control over marijuana found in plain view in a hotel room because the State did not provide any evidence other than the defendant’s mere proximity to the marijuana); Wade v. State, 558 So.2d 107, 108 (Fla. 1st DCA 1990) (“Because appellant was only a visitor, rather than someone who owned, leased, or resided in the room, his mere proximity to the contraband found in plain view was insufficient to convict him.”).

Accordingly, the trial court erred in denying Sundin’s motion for judgment of acquittal. We therefore reverse Sundin’s judgment and sentence.

Reversed.

CASANUEVA, C.J., and CRENSHAW, J., Concur.


author: RAMIREZ, C.J.

text:
    Marisa INFANTE, Appellant, v. VANTAGE PLUS CORP., Vantage Hotel Equity Fund I, LLC, Al Delaney and Omar Botero, Appellees.
    No. 3D08-1960.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 2009.
    Rehearing and Rehearing En Banc Denied Feb. 23, 2010.
    Warren P. Gammill and Madelin D’Arce, Miami, for appellant.
    Richard L. Lapidus; Shutts & Bowen and Stephen T. Maher and Jerel C. Dawson, Miami, for appellees.

      Before RAMIREZ, C.J., and WELLS, and CORTINAS, JJ.
   ON MOTION FOR REHEARING AND CLARIFICATION

RAMIREZ, C.J.

The parties have filed motions for clarification, rehearing, and certification in connection with the opinion issued by this Court on June 24, 2009. We deny the motions for rehearing and certification but grant clarification, withdraw our previous opinion, and substitute this corrected opinion in its stead.

Marisa Infante appealed the trial court’s order vacating a default final judgment. We reverse because Infante correctly asserted all of the causes of action in her complaint, and thus, the trial court improperly vacated the default final judgment on the grounds that the complaint was technically deficient.

Infante filed suit in which she named various defendants. The essence of her suit involves her investment of $1.2 million so as to acquire a hotel property, convert it to a condominium property, and sell the condominium units for a profit. In her complaint, she asserted three causes of action: count 1 for an accounting, and counts II and III for civil theft.

In count I, Infante alleged that Vantage Plus Corporation entered into an escrow agreement with Camner, Lipsitz & Poller, P.A., through Neale J. Poller, Esq., whereby Vantage Plus deposited $1.2 million with its escrow agent Camner. She further alleged that a lawsuit ensued which resulted in a settlement between Vantage Plus and the seller wherein Vantage Plus received an unknown sum of money. In-fante demanded an accounting of her investment. She alleged that Vantage Plus and Vantage Equity, a company through which Infante obtained an ownership interest, had failed and refused to provide her with any accounting of her investment. She further alleged that they had failed and refused to return to her $429,000 of her $1.2 million capital contribution.

In counts II and III, Infante alleged that she neither authorized nor agreed to any escrow disbursements beyond $429,000, and that she did not receive any notice of any demand for escrow funds. She further alleged that she demanded the return of $771,000 from her escrow agent, and that the escrow agent failed to comply. The escrow agent instead colluded and conspired with Vantage Plus, and Vantage Plus’ officers Omar Botero and A1 Delaney to deprive her of $771,000.

Infante more specifically alleged in counts II and III that her escrow agent created a fictional notice letter to her in which Vantage Plus demanded the funds in escrow, but that the escrow agent had already disbursed funds from escrow without any notice to her. She also alleged that Vantage Plus, Botero, Delaney, and the escrow agent, in furtherance of their conspiracy to defraud her, never delivered (1) a letter to her in which they demanded the escrow funds, and (2) the escrow agent’s notice letter. Thereafter, Vantage Plus, Botero, Delaney, and the escrow agent created a bogus fax confirmation sheet to represent proof of notice from the escrow agent to Infante consistent with the terms of the escrow agreement. Vantage Plus, Delaney, Botero, and the escrow agent thus committed theft in that they knowingly obtained, used, or endeavored to obtain or to use $771,000 that belonged to Infante with the intent to either temporarily or permanently deprive her of her right to the funds.

The defendants failed to respond to the complaint, and the trial court entered defaults against them. The trial court thereafter entered a default judgment in Infante’s favor. Several defendants subsequently moved to vacate the default judgment, arguing that the complaint failed to state a cause of action. The trial court granted the motion and vacated the default judgment.

The standard of review of an order that vacates a final judgment by default as void for a complaint’s failure to state a cause of action is de novo. See Rubenstein v. Primedica Healthcare, Inc., 755 So.2d 746, 748 (Fla. 4th DCA 2000). “A default admits every cause of action that is sufficiently well-pled to properly invoke the jurisdiction of the court and to give due process notice to the party against whom relief is sought.” Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 662 (Fla. 5th DCA 1983). Furthermore, as we stated in Becerra v. Equity Imports, Inc., 551 So.2d 486, 488 (Fla. 3d DCA 1989), a “judgment by default operates as a waiver of any mere formal errors in plaintiffs pleading but does not cure a totally defective complaint or waive errors which go to the foundation of plaintiffs cause of action.” (citing 49 C.J.S. Judgments § 200 at 356 (1947)).

We disagree with the trial court that count I failed to state a cause of action for an accounting based upon certain technical deficiencies of the complaint. Count I stated a cause of action for accounting. Infante detailed at length the nature of the claim filed against the defendants, stated the relief she sought, and she alleged that the defendants had failed and refused to give her the accounting she requested. She also specifically alleged that the “Defendants have failed and refused to return to her $429,000 of her $1,200,000 capital contribution.” The defendants now object to the award of $429,000 because, through their own default, no accounting ever took place. By limiting her damages only to those specifically pled in her complaint and foregoing any claim for profits on her investment, the default final judgment was properly entered, and the trial court thus should have upheld it.

The trial court likewise erroneously concluded that the actions for civil theft in counts II and III failed to state a cause of action because Infante failed to allege a felonious intent to steal. Infante pled the precise language of the criminal theft statute, section 812.014(1), Florida Statutes (2006), which provides in pertinent part:

A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

Infante alleged in both counts numerous facts that demonstrated the manner in which the defendants engaged in fraud to ultimately deprive her of her escrow funds. Infante, for example, discussed the defendants’ creation of false evidence to show that she had indeed consented to the release of the escrow funds. Infante thus alleged facts sufficient to plead the statutory requirements that the defendants acted with the felonious intent to steal.

In Moynet v. Courtois, 8 So.3d 377, 380 (Fla. 3d DCA 2009), we stated that plaintiffs “failure to allege criminal intent is fatal to their cause of action for civil theft. Moreover, there are no other facts alleged from which criminal intent may be implied.” While the words “criminal intent” did not appear on the complaint, it is quite detailed in setting forth how the defendants conspired to defraud Infante of her money. We have never required the incantation of magic words, nor voided default judgments on the basis of mere technical errors in pleading. See, e.g., Lazcar Int’l., Inc. v. Caraballo, 957 So.2d 1191, 1193 (Fla. 3d DCA 2007).

The trial court thus erred when it ruled that the default judgment was void for failure to properly plead the theft counts pursuant to the theft statute. We, therefore, reverse the trial court’s order that vacated the default final judgment.

Reversed and remanded.


author: KAHN, J.

text:
    Chico CHEEVES, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5593.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2009.
    Rehearing Denied Feb. 8, 2010.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Bureau Chief — Criminal Appeals, Tallahassee, for Appellee.
   KAHN, J.

Chico Cheeves appeals an order revoking his probation. He raises two issues on appeal: 1) whether the trial court abused its discretion in finding Cheeves had willfully, substantially violated a special condition of probation by being terminated from his psycho-sexual therapy treatment program, and 2) whether the trial judge committed fundamental error at the violation of probation (VOP) hearing by departing from the role of neutral fact-finder. We affirm the revocation order.

On the first issue, Cheeves contends that because the probation order did not specify a deadline for him to complete the treatment program or designate the number of attempts he would be given to complete it, and sufficient time remains in his probationary period for him to complete the treatment program, his probation should be reinstated. Additionally, Cheeves emphasizes the things he did to comply with the requirements of the treatment program.

We review the revocation order to determine whether competent substantial evidence supports the finding that Cheeves willfully, substantially violated the special condition. See Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996). Cheeves misconstrues the proper role of the appellate court by relying on other evidence purportedly showing that 17 months elapsed between his enrollment and termination from the program, that he attended sessions and participated, and that he took the required tests. Where, as in this case, the credibility or weight of the evidence is the issue and the evidentiary record supports the factual finding of a willful, substantial violation of special condition 14, the presence of other evidence that might have supported a contrary result is not relevant to our review. See Stinson v. Winn, 938 So.2d 554, 555 (Fla. 1st DCA 2006); Richardson v. Fla. Parole Comm’n, 924 So.2d 908, 911 (Fla. 1st DCA 2006).

With regard to Cheeves’ contention he still had time to complete the program, the Supreme Court of Florida has stated:

[E]ven where a probation order does not specify a deadline for completing a sex offender program or how many attempts the probationer has to complete it, where a defendant enrolls in but fails to complete a sex offender treatment program, a trial court may, in its discretion and depending on the circumstances, revoke the defendant’s probation.

Adams v. State, 979 So.2d 921, 922 (Fla.2008); see Lawson v. State, 969 So.2d 222, 225 (Fla.2007). The circumstances accepted by the trial court indicate that Cheeves denied full accountability for the crime that resulted in his being subject to special condition 14. His therapist described Cheeves as disruptive, intransigent, manipulative, and deceptive in the treatment program. Accordingly, we find no abuse of discretion in the decision to revoke Cheeves’ probation. See also Arias v. State, 751 So.2d 184 (Fla. 3d DCA 2000); Archer v. State, 604 So.2d 561, 562 (Fla. 1st DCA 1992) (concluding that a probationer subject to a negotiated special condition to undergo a psycho-sexual evaluation and complete all recommended treatment, who refused to comply with the prerequisite to acknowledge he had difficulty controlling his sexual impulses thus willfully and substantially violated a condition of probation upon being expelled from the program).

To the extent that some older district court of appeal decisions applied a bright-line rule that a trial court can never find a willful, substantial VOP where the probationer is expelled from a required treatment program, the probation order fails to specify how many opportunities must be allowed to complete the requirement or when the probationer has to complete it, and time remains in the period of probation, Lawson appears to have overruled them. See Lawson, 969 So.2d at 232-35. Because a probationer avoids prison as “a matter of grace rather than right,” the trial court’s finding a basis for revocation is entitled to great deference. Lawson, 969 So.2d at 229; see also State v. Watson, 909 So.2d 942, 945 (Fla. 5th DCA 2005). We find no abuse of the broad discretion accorded the trial court in deciding whether to revoke probation. See Lawson, 969 So.2d at 235.

As to the second issue, given the failure to make a contemporaneous objection to any of the trial judge’s comments now challenged on appeal, Cheeves must show fundamental error arising from these remarks. See Sparks v. State, 740 So.2d 33, 36 (Fla. 1st DCA 1999). We conclude the record refutes Cheeves’ contention that the trial judge improperly bolstered a state witness’ testimony or departed from the role of a neutral fact-finder in deciding whether a YOP occurred. Fundamental error is a strict standard designed to correct the kind of harmful error that goes to the validity of the proceeding itself, to the extent that a determination of guilt could not have been made without the error. See Reed v. State, 837 So.2d 366, 369-70 (Fla.2002); State v. Delva, 575 So.2d 643, 644-45 (Fla.1991).

AFFIRMED.

LEWIS and WETHERELL, JJ„ concur.


text:
    Norman H. LAWTON, Appellant, v. Norma J. SORRELLS and State of Florida, Department of Revenue (DOR/CSEA), Appellees.
    No. 1D09-4016.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Rehearing Denied Feb. 8, 2010.
    Norman H. Lawton, pro se, Appellant.
    R. Craig Hemphill, Jacksonville, for Ap-pellees.
   PER CURIAM.

DISMISSED. See Maryland Casualty Co. v. Century Const. Corp., 656 So.2d 611 (Fla. 1st DCA 1995); Owens v. State, 579 So.2d 311 (Fla. 1st DCA 1991) (noting that without a signed written order there is nothing to appeal, and therefore, an oral pronouncement cannot be appealed). This dismissal is without prejudice to the appellants right to seek appellate review once a final order on the post-judgment proceedings has been rendered.

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


text:
    John M. MURRAY, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D09-4055.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Rehearing Denied Feb. 8, 2010.

      John M. Murray, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied as untimely.

WEBSTER, DAVIS, and PADOVANO, JJ., concur.


author: KHOUZAM, Judge.

text:
    HESS CORPORATION, Appellant, v. Denise GRILLASCA and Kelly Mayzik, Appellees.
    No. 2D09-1338.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 2009.
    Rehearing Denied Feb. 25, 2010.

      Martin Garcia and Hunter W. Carroll of Matthews, Eastmoore, Hardy, Crauwels, and Garcia, P.A., Sarasota, for Appellant.
    Cameron D. Moyer, Madeira Beach, and James A. Staack of Staack, Simms & Hernandez, P.A., Clearwater, for Appellees.
   KHOUZAM, Judge.

Denise Grillasca and Kelly Mayzik (the Appellees) filed a class action complaint against Hess Corporation for multiple claims arising from the “holds” allegedly placed on their bank accounts when they purchased fuel at self-service pumps using their debit cards without entering a personal identification number (pin). The circuit court certified a class under Florida Rule of Civil Procedure 1.220(b)(2) and (b)(3). Because individual issues predominate over common questions and because the record does not reflect that injunctive or declaratory relief is appropriate to the class as a whole, we reverse the order granting class certification.

FACTS AND PROCEDURAL HISTORY

This action arises from Hess’s business practice of obtaining preauthorization from a bank when a customer swipes his or her debit card at a self-service fuel pump and the customer does not enter a pin code. Because Hess does not know how much fuel the customer will eventually purchase, the amount of the preauthorization request may exceed the amount of the actual transaction. Hess’s third-party processor converts the preauthorization request into a $1 status check and submits the status check to the bank to confirm that there is an open and active account associated with the debit card. When the bank receives the status check, the bank may place a hold on funds in the customer’s account until the transaction is settled. The amount of the hold may be greater than the $1 status check to cover the maximum amount the bank is required to pay to Hess if the customer’s account contains insufficient funds to settle the transaction. During the period of the hold, the funds may be unavailable for use in subsequent transactions.

In their complaint, the Appellees claimed that in September 2005, a $75 hold was placed on each of their bank accounts after they purchased fuel from Hess using their debit cards without entering a pin code. They further claimed that they were unable to access the “held” funds in their accounts for several days. The Ap-pellees filed suit alleging six claims against Hess: violations of the Florida Deceptive and Unfair Trade Practices Act (FDUT-PA) (count I); injunctive and declaratory relief under FDUTPA (count II); fraud/intentional misrepresentation (count III); negligence (count IV); breach of contract (count V); and permanent injunctive relief (count VI). The Appellees sought damages arising from the loss of use of the funds in their bank accounts. They also sought injunctive and declaratory relief based on Hess’s alleged failure to adequately notify its customers that holds could be placed on their bank accounts in amounts that were in excess of the average purchase price of fuel.

After an evidentiary hearing, the circuit court certified counts II and VI under rule 1.220(b)(2), and it certified counts I, III, IV, and V under rule 1.220(b)(3). In its order, the court certified the class defined as:

All persons who purchased self service fuel at the pump in the State of Florida at a HESS owned or franchised fuel station after November 8, 2008 and which persons used a Checkcard/debit-card and who were subjected to a $75.00 or $50.00 preauthorization without warning or notification by HESS that HESS requested pre-authorization from the Checkcard/debitcard issuer for a $75.00 ($50.00 prior to September 1, 2005) purchase and which persons had a “hold” in the amount of the pre-authorization placed on their personal financial accounts which was in excess of the actual purchase price.

THE REQUIREMENTS FOR CLASS CERTIFICATION

Before a class action can be certified, the circuit court must conduct a rigorous analysis to determine whether the elements of rule 1.220 have been met. Rollins, Inc. v. Butland, 951 So.2d 860, 867 (Fla. 2d DCA 2006). The party moving to certify the class has the burden of proving that the requirements in rule 1.220(a) and at least one of the three subdivisions of rule 1.220(b) have been satisfied. Id. at 868. Rule 1.220(a) requires that (1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim raises questions of law or fact common to each member of the class, (3) the claim of the representative party is typical of the claim of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of other members of the class.

Rule 1.220(b)(2) allows for class certification where “the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate.” Rule 1.220(b)(3) requires that common questions of law or fact predominate over any individual questions of the separate class members, and that class representation is superior to other available methods for the fair and efficient adjudication of the controversy.

We review the circuit court’s order certifying a class action for an abuse of discretion. See Bouchard Transp. Co. v. Updegraff, 807 So.2d 768, 771 (Fla. 2d DCA 2002).

DISCUSSION

On appeal, Hess contends that the circuit court erred in granting certification under rule 1.220(b)(3) because individual issues predominate over common issues. Hess argues that a class action trial would devolve into a series of mini-trials as to (1) whether a hold was placed on a putative class member’s bank account; (2) whether Hess effectively provided notice of the preauthorization request; (3) whether a putative class member sustained damages; and (4) if so, the amount of damages sustained. We agree that class certification was improper because of the individualized differences among the members of the putative class with respect to proof of liability and damages.

If individual questions predominate, a class action trial is unmanageable. Humana, Inc. v. Castillo, 728 So.2d 261, 266 (Fla. 2d DCA 1999).

To certify a class, rule 1.220(b) requires not only that common questions exist, but that those common questions predominate over individual questions. Rule 1.220 also requires a class action to be manageable and superior to other proceedings. To determine if the requirements of Rule 1.220 have been met, a trial court must envision how a class action trial would proceed.
Under this analysis, the trial court must determine whether the purported class representatives can prove their own individual cases and, by so doing, necessarily prove the eases for each one of the thousands of other members of the class. If they cannot, a class should not be certified.

Id.

Here, Hess presented evidence that not all banks place holds in connection with preauthorization requests. Furthermore, the length of the holds and the amount of the holds can vary based on a number of reasons. Hess’s expert testified that Hess’s third-party processor would convert the $75 preauthorization request into a $1 status check to submit to the bank. During an eight-day period in September 2005, however, the third-party processor failed to convert the $75 preau-thorization request into a $1 status check before submitting the request to the bank. As a result, Hess placed notices on some, but not all, of its fuel pumps to notify customers that a hold of up to $75 could be placed on their bank accounts. Thus Hess’s alleged conduct was not the same for each member of the putative class.

Moreover, not all the members of the putative class sustained damages arising from Hess’s alleged conduct. Evidence was presented that the banks continued to pay interest on the funds that were subject to the holds. Ms. Grillasca did not incur any charges as a result of the hold. Although Ms. Mayzik incurred overdraft charges as a result of the hold, these charges were later refunded by the bank. It is likely that many members of the putative class did not suffer a loss because they did not attempt to access the funds while the holds remained in place. Furthermore, class members with sufficient funds in their accounts would not sustain any losses because they would have been able to complete subsequent transactions after purchasing fuel from Hess. These members would be unaware that holds were placed on their accounts because the holds are usually not reflected in the monthly statements from the banks.

Additionally, the supreme court has held that claims for fraud based on individual contracts cannot be the basis for a class action. Lance v. Wade, 457 So.2d 1008, 1011 (Fla.1984). This court has applied the rule in Lance in reversing an order certifying a class action for alleged misrepresentations or failure to disclose information to potential enrollees in a health maintenance organization. Humana, 728 So.2d at 266. In Rollins, this court also relied on Lance to reverse the class certification of claims based on misleading advertising and racketeering. Rollins, 951 So.2d at 877-78. Therefore, the certification of the fraud/intentional misrepresentation claim (count III) was erroneous.

We also reverse the circuit court’s certification under rule 1.220(b)(2) because the record does not reflect that injunctive or declaratory relief was appropriate to the class as a whole. Certification under this subsection is “appropriate only for the resolution of class claims that rest on the same grounds and apply equally to all members of the class.” Freedom Life Ins. Co. of Am. v. Wallant, 891 So.2d 1109, 1117 (Fla. 4th DCA 2004).

As discussed above, significant differences exist among the members of the class that will require individualized determinations as to Hess’s liability and whether damages exist and, if so, the amount of damages sustained. Therefore, certification under rule 1.220(b)(2) was improper. See Chase Manhattan Mortgage Corp. v. Porcher, 898 So.2d 153, 159 (Fla. 4th DCA 2005) (reversing certification under rule 1.220(b)(2) where injunctive class lacked cohesiveness).

CONCLUSION

For these reasons, we conclude that the circuit court abused its discretion in certifying the class under rule 1.220(b)(2) and (b)(3). Accordingly, we reverse the order of class certification and remand this case to the circuit court for further proceedings.

Reversed and remanded for further proceedings.

CASANUEVA, C.J., Concurs.

KELLY, J., Concurs in result only.

      . Hess requested a $50 preauthorization prior to September 1, 2005. From September 1, 2005, to June 2008, Hess requested a $75 preauthorization. Hess has requested a $100 preauthorization since June 2008.

      . The notices stated as follows:

        NOTICE: Debit and Check Card Customers!

      If you use your card without using the PIN number, your issuing bank may place a hold in excess of the transaction amount (up to $75) on your account for several days.
      To avoid such a hold, PLEASE press the DEBIT key before swiping your card, and enter your PIN number.


author: WELLS, Judge.

text:
    Eddy A. MEJIA, Appellant, v. COTTONIMAGES.COM, INC., and The Florida Unemployment Appeals Commission, Appellees.
    No. 3D09-1795.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.
    Rehearing Denied Feb. 23, 2010.
    Eddy A. Mejia, in proper person.
    Louis A. Gutierrez, for appellee, Florida Unemployment Appeals Commission.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

Affirmed. See § 443.151(3), Fla. Stat. (2009) (providing that an appeal from an unemployment compensation claim decision must be filed within twenty (20) days after mailing of the notice of decision); Leon v. Unemployment Appeals Comm’n, 476 So.2d 761, 761 (Fla. 3d DCA 1985) (observing that “late filing deprived the referee of jurisdiction to consider the merits of Leon’s claim”).


text:
    Armando VALDES, III, etc., et al., Appellants, v. OPTIMIST CLUB OF SUNILAND, INC., et al., Appellees.
    No. 3D08-1563.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.
    Rehearing Denied Feb. 23, 2010.
    Hersch & Talisman and Patrice A. Talisman; Donna B. Michelson, Coconut Grove, and Phillip D. Parrish, for appellants.
    Thornton, Davis & Fein and Barry L. Davis and Michael D. Bon, Miami, for appellees.
    Before RAMIREZ, C.J., and ROTHENBERG, and LAGOA, JJ.
   RAMIREZ, C.J.

Armando Valdes, III and his parents, appeal the trial court’s entry of final summary judgment in favor of the defendants below, McNeil-P.P.C., Inc. Because we believe the United States Supreme Court’s decision in Wyeth v. Levine, — U.S. —, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009), controls the issue of federal preemption presented in this case, we reverse the trial court’s determination.

On April 24, 1999, Armando Valdes, III collapsed during a roller hockey game. He had to be resuscitated at the scene and was then taken to a hospital. Doctors diagnosed him with having suffered a heat stroke and cardio-respiratory arrest which resulted in a brain injury, hypoxic ischemic encephalopathy, and left him completely disabled. On the morning of his collapse, Armando took Tylenol Cold, an over-the-counter medication, for his head cold along with soda. Armando and his parents filed a negligence and products liability suit against McNeil, the manufacturer of Tylenol Cold, as well as the hockey club and equipment vendor, for Armando’s injuries.

The Valdeses settled with all the defendants except for defendant McNeil for strict liability and negligent failure to warn. The Valdeses contended that the Tylenol Cold medication, which contains pseudoephedrine, increased the risk of heat-related illness and heart-related risks when ingested with caffeinated products and coupled with strenuous or athletic events in a hot environment like that of South Florida. They asserted that McNeil’s failure to warn of these risks on the labels of the Tylenol Cold packaging breached Florida state law requirements.

McNeil filed several affirmative defenses in its response to the Valdeses’ complaint including federal preemption. After discovery, McNeil moved for final summary judgment arguing that federal law, which governs over-the-counter and non-prescription drugs, and the FDA’s labeling requirements, which did not require McNeil to include the risk of heat-related illness on the label, preempted the state law claims in the Valdeses’ complaint. 21 U.S.C. § 879r. The lower court agreed and granted final summary judgment in favor of McNeil. The Valdeses appealed the decision to this Court.

Because this is an appeal from an order of summary judgment and calls for a review of an issue of law, our standard of review is de novo. State v. Coney, 845 So.2d 120, 137 (Fla.2003).

McNeil argues that federal law that governs the labeling of medication preempts state law requirements and bars state law claims from being brought against it since its label contained the FDA-approved language. The federal statute in question states that no State or political subdivision thereof may establish regulations for drugs different from those required by that chapter of the statute unless one of the listed statutory exceptions applies. 21 U.S.C. § 379r(b). The exception at issue, subsection (e), states: “[n]othing in this section shall be construed to modify or otherwise affect any action or the liability of any person under the product liability law of any State.” 21 U.S.C. § 379r(e). McNeil concedes that express preemption does not apply, but argues that implied preemption is applicable here because compliance with both state law and federal law is impossible and, even if not impossible, would frustrate the Congressional purposes and objectives behind the enactment of the statute.

The Court recently decided Wyeth, and the ruling in that case controls our decision here. See Wyeth v. Levine, — U.S. —, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). The facts in Wyeth are similar to the ones here, and the arguments made by the prescription drug manufacturer are practically identical to those advanced by McNeil. In Wyeth, the Court found that:

If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA’s 70-year history. But despite its 1976 enactment of an express pre-emption provision for medical devices ..., Congress has not enacted such a provision for prescription drugs ... Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.

Id. at 1200.

McNeil argues that Wyeth is distinguishable because it dealt with prescription drugs and not over-the-counter medication like those at issue here. We disagree with McNeil that the distinction carries the weight to allow it to circumvent the reasoning of the Court in Wyeth. After extensively detailing the historical background of the FDCA and amendments to the act, the Court found that the failure of Congress to expressly preempt the field in light of the long history since enacting the FDA leads to the conclusion that state actions like those here “lend force to the FDCA’s premise that manufacturers, not the FDA, bear primary responsibility for their drug labeling at all times. Thus, the FDA long maintained that state law offers an additional, and important, layer of consumer protections that complements the FDA regulation.” Id. at 1202-03. Additionally, the Court, citing to the very statutory exception at issue here, stated in a footnote that the 1997 amendment to the statute “pre-empted certain state requirements concerning over-the-counter medications and cosmetics but expressly preserved product liability actions. See 21 U.S.C. §§ 379r(e), 379s(d).” Id. at 1200 n. 8. This further weakens McNeil’s attempts to distinguish Wyeth from the facts of this case.

Based on the Court’s holding in Wyeth, we conclude that the trial court’s entry of final summary judgment in McNeil’s favor was in error and therefore reverse. The federal law that regulates the labels of over-the-counter medication at issue here expressly saves this type of state law causes of action, and there is no implied federal preemption that would keep the Valdeses from going forward with their suit against McNeil.

Reversed.