text:
    Derrick GLOVER, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 1D08-2194.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2010.
    Rehearing Denied Feb. 25, 2010.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, for Appellant/Cross-Appellee.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, for Appellee/Cross-Appellant.
   PER CURIAM.

The appellant appeals his conviction for manslaughter by culpable negligence. We affirm the appellant’s judgment and sentence without further discussion. However, we find the issue raised in the State’s cross appeal to have merit. For the reasons discussed below, we quash the decision of the trial court to arrest judgment on the appellant’s conviction for furnishing a firearm to a minor and remand for the trial court to reinstate that conviction.

Section 775.021, Florida Statutes (2007), sets out the rules to be used by Florida courts to determine whether a defendant may be convicted of two separate offenses committed during one criminal episode. According to section 775.021(4):

(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

This statute was intended by the Legislature to be a codification of the analysis set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See State v. McDonald, 690 So.2d 1317, 1318 (Fla. 2d DCA 1997). Under the test set out in Blockburger, double jeopardy is not violated if a defendant is convicted of crimes which each have an element the other crime does not. The elements of manslaughter include (1) the killing of a human being, (2) caused by an act of culpable negligence. See § 782.07, Fla. Stat. (2007); Fla. Std. Jury Instr. (Grim.) 7.7. To prove the crime of furnishing a firearm to a minor the state must prove that the defendant: (1) knowingly or willfully sold or transferred a firearm to, (2) a minor under 18 years of age. See § 790.17(2)(a), Fla. Stat. (2007); Fla. Std. Jury Instr. (Crim.) 10.11. It is clear that each crime has an element which the other does not. Manslaughter contains the element of the killing of a human being, which furnishing a firearm to a minor does not. On the other hand, furnishing a firearm to a minor contains the element of selling or transferring a firearm, which manslaughter does not. Therefore, according to Blockburger, the dual convictions were proper unless the offenses fit within one of the exceptions in section 775.021(4)(b).

The appellant asserts that the trial court properly ruled that he could not be convicted of both manslaughter and furnishing a firearm to a minor because furnishing a firearm to a minor was a necessarily lesser included offense of the charged offense of culpable negligence. Specifically, the appellant asserts that because the state could not prove the manslaughter charge without proving that the appellant sold a firearm to a minor, his conviction for both manslaughter by culpable negligence and furnishing a firearm to a minor is precluded under section 775.021(4)(b)3. However, the appellant’s reasoning is erroneous because it is based on an examination of the facts of the case, which is improper.' See § 775.021(4)(a), Fla. Stat. (2006) (“offenses are separate if each offense requires proof of an element that the other does not, ivithout regard to the accusatory 'pleading or the proof adduced at trial ”) (emphasis added); Pizzo v. State, 945 So.2d 1203 (Fla.2006) (“lesser offenses ‘are those in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial’ ”) (quoting State v. Florida, 894 So.2d 941, 947 (Fla.2005)); Gaber v. State, 684 So.2d 189, 190 (Fla.1996) (stating that in a double jeopardy analysis, “we cannot examine facts from the record” but “must look only to the statutory elements”). Furnishing a firearm to a minor is not a lesser included offense of manslaughter. See Fla. Std. Jury Instr. (Crim.) 7.7.; See State v. Florida, 894 So.2d 941, 947 (Fla.2005) (“subsection (4)(b)(3) applies only to necessarily lesser included offenses, those listed in Category 1 of the Schedule of Lesser Included Offenses”), receded from on other grounds in Valdes v. State, 3 So.3d 1067 (Fla.2009). The elements of furnishing a firearm to a minor are not “subsumed” by the elements of manslaughter. Accordingly, we quash the trial court’s decision arresting judgment on the furnishing a firearm to a minor conviction and remand for the trial court to reinstate that conviction.

HAWKES, C.J., BENTON, J., and HANKINSON, JAMES C., Associate Judge, concur.

      . The trial court ruled: "[Alll of the elements necessary to establish the Furnishing a Firearm to a Minor charge, are encompassed in the elements necessary to prove Manslaughter because in order to establish the culpable negligence element of the Manslaughter charge, it is necessary to establish that the Defendant provided the victim with a firearm.”

      . The other exceptions of section 775.021(b) clearly do not apply. The offenses do not require identical elements of proof and the offenses are not the same degree of offense as provided by statute. See Valdes v. Stale, 3 So.3d 1067 (Fla.2009).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ronnie C. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-3035.
    District Court of Appeal of Florida, Fifth District.
    Jan. 15, 2010.
    Rehearing Denied March 10, 2010.

      Ronnie C. Williams, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, Ronnie C. Williams, seeks correction of his sentence, alleging ineffective assistance of appellate counsel. See Fla. R.App. P. 9.141(c). Williams asserts that appellate counsel should have filed a motion, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), to correct his sentence prior to the filing of his initial brief. See generally O’Leary v. State, 2 So.3d 358 (Fla. 2d DCA 2008); Barber v. State, 918 So.2d 1013 (Fla. 2d DCA 2006). Williams contends that he was illegally sentenced to thirty years’ incarceration as a Prison Releasee Reoffender (PRR) for a second-degree felony.

Williams pled no contest to attempted second-degree murder. The information labeled the charge a first-degree felony. Generally, attempted second-degree murder is a second-degree felony, punishable by no more than fifteen years’ imprisonment. See §§ 782.04(2), 777.04(4)(c) and 775.082(3)(c), Fla. Stat. (2008). However, this offense is reclassified to a first-degree felony if the defendant carried, displayed, used, threatened to use, or attempted to use any weapon or firearm during its commission. See § 775.087(l)(b), Fla. Stat. (2008).

The information alleged that Williams attempted to kill or murder Da-vonia Goodman by using a kitchen knife to stab and cut her in the arm, neck, hands and back, and by manually choking her. As the factual basis at the plea hearing, the prosecutor informed the trial court that Williams stabbed his girlfriend with a large kitchen knife and she suffered extensive defensive wounds to her hands and arms. The attempted second-degree murder charge was, therefore, properly reclassified to a first-degree felony.

The written plea agreement informed Williams that the maximum imprisonment for attempted second-degree murder was thirty years’ incarceration, the maximum for a first-degree felony. The plea agreement also advised Williams that, as a habitual offender, he was subject to life imprisonment if convicted as charged. Williams agreed to enter a plea in exchange for a thirty-year PRR sentence.

Based on the information and the written plea, Williams was aware that he was entering a plea to a first-degree felony. The final judgment labeled the conviction a first-degree felony, but identified the offense as “attempted murder in the second degree,” without any reference to the weapon which reclassified the felony. Under these circumstances, we view the final judgment’s failure to include the phrase, “with a weapon,” a scrivener’s error.

An illegal sentence is one that no judge under the entire body of sentencing statutes could legally impose under any set of factual circumstances. See Carter v. State, 786 So.2d 1173 (Fla.2001). We conclude that appellate counsel was not ineffective for failing to file a rule 3.800(b)(2) motion to correct sentence because Williams received the agreed-upon thirty-year PRR sentence for a first-degree felony. See § 775.082(9)(a)3.b., Fla. Stat. (2008).

PETITION DENIED.

MONACO, C.J., GRIFFIN and COHEN, JJ., concur.


text:
    Mark C. CANNON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2403.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2010.
    Rehearing Denied March 2, 2010.
    Mark C. Cannon, Perry, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Perkins, 977 So.2d 643, 645-46 (Fla. 5th DCA), rev. denied, 991 So.2d 387 (Fla.2008); Woodson v. State, 739 So.2d 1210, 1211 (Fla. 3d DCA 1999).

SAWAYA, LAWSON and COHEN, JJ., concur.


author: GRIFFIN, J.

text:
    FLORIDA MEDICAL & INJURY CENTER, INC., etc., Petitioner, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Respondent. Progressive American Insurance Company, Petitioner, v. Preziosi West/East Chiropractic, etc., Respondent.
    Nos. 5D08-4005, 5D09-889.
    District Court of Appeal of Florida, Fifth District.
    Jan. 22, 2010.
    Rehearing Denied March 10, 2010.

      Kevin B. Weiss, of Weiss Legal Group, P.A., Maitland, for Petitioner, Florida Medical & Injury Center, Inc., and, Respondent, Preziosi West/East Chiropractic Clinic, P.A.
    Douglas H. Stein, of Seipp & Flick, LLP, Miami, for Respondent, Progressive Express Insurance Company and Petitioner, Progressive American Insurance Company.
   GRIFFIN, J.

We have two second-tier certiorari petitions before us that present the same issue for decision. In one, the Petitioner is Florida Medical & Injury Center, Inc. and Progressive Express Insurance Company is the Respondent. In the second case, the Petitioner is Progressive American Insurance Company and the Respondent is Preziosi West/East Chiropractic. Both Petitioners seek review of decisions of different circuit judges in the Eighteenth Judicial Circuit sitting on appeal in review of county court decisions involving personal injury protection [“PIP”] benefits. In each of the two decisions, the judges reached opposite conclusions. This issue is one that has similarly generated conflicting opinions across the state by more than two dozen county and circuit courts, and is in need of resolution.

The issue presented concerns a provision added by the Legislature in 2003 to Florida’s personal injury protection statute. Section 627.736(5)(e)l., Florida Statutes (2005), provides:

(5) CHARGES FOR TREATMENT OF INJURED PERSONS.—
(e)l. At the initial treatment or service provided, each physician, other licensed professional, clinic, or other medical institution providing medical services upon which a claim for personal injury protection benefits is based shall require an insured person ... to execute a disclosure and acknowledgment form, which reflects at a minimum that:
a. The insured, or his or her guardian, must countersign the form attesting to the fact that the services set forth therein were actually rendered;
b. The insured, or his or her guardian, has both the right and affirmative duty to confirm that the services were actually rendered;
c. The insured, or his or her guardian, was not solicited by any person to seek any services from the medical provider;
d. That the physician, other licensed professional, clinic, or other medical institution rendering services for which payment is being claimed explained the services to the insured or his or her guardian; and
e.If the insured notifies the insurer in writing of a billing error, the insured may be entitled to a certain percentage of a reduction in the amounts paid by the insured’s motor vehicle insurer.

The apparent twin purposes of this “Disclosure and Acknowledgement Form” [“D & A form”] are to enhance patient understanding of their treatment and to discourage fraud by unscrupulous medical providers, especially the submission of claims for services not actually performed on the patient.

Subsection (5)(e)l. sets forth certain minimum disclosures that the provider must make to the patient and requires the patient to countersign the form attesting that the services identified were actually provided. The (5)(e)l. requirement of a D & A form applies only to the initial visit. Thereafter, pursuant to 5(e)9., the provider has to maintain a log of the services provided to the patient, which is countersigned by the patient to signify that the services were, in fact, provided. Subsection (5)(e)5. requires the original D & A form to be furnished to the insurer.

The most familiar provision of the PIP statute to the courts of Florida is subsection (4). This provision has been a key part of the PIP statute since it was first enacted. It provides that PIP benefits become overdue if the insurer has not paid them within thirty days after the insurer is furnished with “written notice of the fact of a covered loss and of the amount of same.” § 627.736(4)(b), Fla. Stat. (2008).

The insurers’ position in these cases and the many others arising across the state is a bold one: If a medical provider furnishes to the PIP insurer a flawed “disclosure and acknowledgement” form for the initial service or treatment it provided to the insured, the consequences are:

(1) the insurer will be deemed not to have notice of the insured loss and accordingly will have no duty to the insured or provider to pay any benefits or take any other action with respect to the insured’s loss;
(2) No payment to the provider will be' due for any subsequent treatment or services to the insured even if the requirements of section 627.736(5)(e)9. are met for subsequent treatments because by having failed to correctly submit the disclosure and acknowledgement form for the initial treatment there is no “claim” for which these treatments can be “subsequent.”
(3) Any error in submission of the initial “disclosure and acknowledgement” form is irremediable.
(4) Any defect in the form is not subject to waiver or estoppel by the conduct of the insurer and can be asserted by the insurer at any time, even if the insurer paid all or part of the claim without objecting to the defect.
(5) The furnishing of a flawless “disclosure and acknowledgement” form is a condition precedent to the right of a medical provider to file suit against the insurer for benefits unpaid or only partly paid.

With the qualified exception of the last of these contentions, we find no statutory or other legal authority for the insurers’ position.

The cosmos that the insurers have constructed around the D & A form depends on the notion that a properly completed D & A form is an integral and indispensable element of the “notice of the fact of a covered loss and of the amount of same” referenced in 627.736(4)(b). Therefore, if a defective D & A form is submitted to an insurer, the insurer has not been given notice of the loss. If there is no notice, benefits can never be due.

In both of the cases before us, even though the insurer had actual notice of “the fact of a covered loss and the amount of same,” and the claims were paid, albeit at a reduced rate, without any complaint about the D & A form, the insurers now contend that they have no duty to pay because there was a defect in completion of the D & A form. In both cases, the flaw was the attachment to the form of documents showing services rendered rather than listing them on the face of the form. As a review of the many decided cases demonstrates, however, the range of asserted flaws runs the gamut from the type of form used to the timing and manner of execution by either the insured or health care provider. See Millennium Diagnostic Imaging Ctr. v. United Auto. Ins. Co., 15 Fla. Supp. 180 (Fla. Dade Cty. Ct.2007); Eric G. Friedman, D.C., P.A., v. United Auto. Ins. Co., 13 Fla. Supp. 825 (Fla. Dade Cty. Ct.2006). For example, it has been argued that 5(e) requires the execution by both the patient and health care provider at the initial treatment, so the execution by either at any other time is a defect that will bar recovery for that treatment or any that follow. See Polinar-Nosel, M.D., P.A. v. United Auto. Ins. Co., 15 Fla. Supp. 1190 (Fla. Broward Cty. Ct.2005).

A summary of the facts in each of the two cases we decide today will show the context in which the issue arises. Frederi-co Vega, a patient insured under personal injury protection coverage issued by Progressive was involved in an automobile accident in July 2006. He was treated by Respondent, Preziosi West/East Chiropractic Clinic. Preziosi submitted several bills to Progressive for PIP benefits in the amount of $1,681.38, plus interest, for medical, rehabilitative, nursing and remedial care rendered to Mr. Vega for dates of sendee ranging from August 11, 2006, through September 19, 2006. Said services were claimed to be medically necessary, reasonable and related to the July 2006 automobile accident. Preziosi also submitted a standard D & A form. The form was signed by Vega, dated August 11, 2000, and included the following:

1. The services set forth below were actually rendered. This means that those services have already been provided.
East/West Orlando Chiropractic Clinic
Dr. Vincent Preziosi, D.C.

Attached to the D & A form were detailed bills describing the services rendered and the cost. Progressive reimbursed Preziosi for each of its bills, but at a reduced rate.

In November 2006, Preziosi provided Progressive with a pre-suit demand letter pursuant to section 627.736(11), Florida Statutes, requesting payment for the unpaid portion of Vega’s medical bills from dates of service August 11, 2006, to September 19, 2006. In the letter, Preziosi also requested insurance information from ■ Progressive, including copies of the insured’s declarations page, policy and PIP log. Progressive did not comply with Pre-ziosi’s demand letter and refused to pay.

In December 2006, Preziosi filed suit against Progressive for the unpaid PIP benefits. Progressive filed an answer and affirmative defenses generally denying the allegations of the complaint, including Pre-ziosi’s allegation of compliance with all conditions precedent. Progressive also raised various affirmative defenses, including that the D & A form was incomplete. According to Progressive, Preziosi failed to satisfy all conditions precedent to obtain PIP benefits under the Progressive policy by failing to provide Progressive with a properly completed D & A form. Paragraph 1 of the D & A form submitted by Preziosi did not contain the required list or description of the services in the empty spaces provided.

In March 2007, Progressive filed a motion for summary judgment. In this motion it argued that it was entitled to summary judgment as to all of the dates of service at issue in the complaint because Preziosi had not submitted a “complete” D & A form as required by section 627.736(5)(e), Florida Statutes (2005). As part of its motion for summary judgment, Progressive provided copies of the health insurance claim forms submitted to Progressive, as well as copies of all of Progressive’s explanations of benefits [“EOB’s”] in response to those bills. None of the EOB’s raised the issue of an incomplete D & A form. Progressive also provided copies of checks confirming its partial payment of the dates of sendee at issue and an affidavit from an employee of Progressive stating that Progressive received a D & A form from Preziosi.

In May 2007, a hearing was held on Progressive’s motion for summary judgment. At the hearing, Progressive argued that although it had adjusted and partially paid Preziosi’s bills prior to the lawsuit, it was relieved of any responsibility to pay any benefits to Preziosi because Preziosi violated section 627.736(5)(e) by not specifying what services were provided to the insured in the space provided in the standard D & A form. Progressive also argued that because section 627.736(5)(e) mandates that “the original completed disclosure and acknowledgement form shall be furnished to the insurer pursuant to paragraph (4)(b),” Preziosi’s failure to list or describe the services rendered on the face of the D & A form means that Progressive has not been provided with “written notice of a covered loss” as is required by the statute and therefore is relieved of any obligation to provide PIP benefits as a matter of law. Preziosi admitted that the form did not contain a description of the services rendered; however, it claimed substantial compliance because it had attached to the D & A form health insurance claim forms and medical notes describing the chiropractic treatment provided to Mr. Vega. Preziosi contended that, even if the D & A form was legally insufficient, it could not bar payment of the entire claim, but only the first date of service because the plain language of the statute says “[t]he requirements of this paragraph apply only with respect to the initial treatment.” See § 627.736(5)(e)(9).

Progressive finally argued that the plain language of section 627.736(4)(b) allows it to raise the defective D & A form at any time, even after a payment of the claim. Preziosi responded that Progressive was given proper and sufficient notice and that Progressive waived its right to argue that the D & A form was defective because it did not raise the deficiency in any of its EOB’s or in its pre-suit response and because it had, in fact, partially paid the bills.

The county court entered a summary judgment in favor of Progressive. Pre-ziosi appealed to the circuit court and a one-judge appellate “panel” reversed, adopting the reasoning in the widely-cited but unpublished opinion of Duval County Judge Arias in the case of Lowery v. Progressive Select Ins. Co., No. 16-2007-SC-6332 (Fla. Duval Cty. Ct. July 8, 2008).

In the second case, Petitioner, Florida Medical & Injury Center, Inc. [“FMIC”], as assignee of Adrian Escobeda [“Escobe-da”], seeks certiorari review of an opinion of the circuit court, issued in its appellate capacity, which affirmed a county court’s entry of a summary judgment in favor of the Progressive Express Insurance Company. In the order under review, the circuit court upheld the county court’s determination that FMIC failed to provide Progressive with a proper D & A form as required by section 627.736(5)(e)l., Florida Statutes, and thus FMIC’s PIP claim was barred.

FMIC had provided medical services to Escobeda for injuries he sustained in an automobile accident on January 28, 2005. On February 22, 2005, Progressive received a standard D & A form from FMIC, as assignee of Escobeda’s benefits. The “blank” in this D & A form, intended to be used to list services rendered, was not filled in by FMIC, but the records were attached.

On May 9, 2005, Progressive sent FMIC an “Explanation of Benefits” (“EOB”), reimbursing FMIC for the submitted bills at a reduced rate. It did not reference the D & A form. On September 27, 2005, FMIC sent a pre-suit demand letter, pursuant to section 627.736(11), Florida Statutes, to Progressive seeking the unpaid portion of the submitted medical bills. Progressive refused. On June 16, 2006, FMIC filed a complaint in the county court in Seminole County against Progressive seeking PIP reimbursement in the amount of $340.18 for services rendered on March 5 and 23 and April 6 and 13, 2006. Progressive filed an answer and affirmative defenses which included, inter alia, an affirmative defense that FMIC’s D & A form failed to comply with the requirements of section 627.736(5)(e), Florida Statutes, because it was not properly completed.

Progressive then filed a motion for summary final judgment, asserting that the D & A form provided to Progressive by FMIC failed to satisfy the requirements of section 627.736(5)(e)5., Florida Statutes (2005), because FMIC failed to list the services rendered to Escobeda at the initial visit. Progressive asserted that because FMIC failed to comply with the statutory D & A requirements, Progressive was entitled to judgment as to all dates of service.

FMIC responded to the motion for summary judgment, acknowledging that it left line 1. blank, but argued that, even though the information on services rendered was missing in the standard D & A form, it had supplied complete documentation supporting the claim and Progressive had paid for the services rendered (at a reduced rate), without objecting to the adequacy of the form, and therefore, Progressive could not claim that FMIC was barred from recovery because of alleged non-compliance with the statutory D & A form requirements. FMIC also argued that completion in full of the standard D & A form was not required under section 627.736(5)(e), Florida Statutes (2005). Finally, FMIC argued that it was not seeking payment for the initial treatment and, therefore, the D & A requirement did not apply. FMIC pointed out that the standard D & A form only applies to the initial treatment.

The county court entered an order granting summary final judgment in favor of Progressive, concluding that the D & A form sent by FMIG violated the requirements of section 627.736(5)(e)5., Florida Statutes (2005), because it failed to list on the face of the form services provided, and, therefore, Progressive was relieved of the duty to pay.

FMIC appealed the county court’s decision to the circuit court. On appeal, FMIC argued:

1. FMIC “substantially complied” with the statute, because the D & A form was signed and dated and Progressive had been provided the documentation of Es-cobeda’s medical bills.
2. Progressive waived any defense as to lack of notice by partially paying the bills at issue and should be estopped from raising the D & A form defense.
3. Even if the D & A form was insufficient, the statute does not provide a remedy if the form is not completed properly and there is no mechanism permitting a forfeiture or denial of coverage on this basis.
4. The statutory requirements governing the D & A form only apply to the initial treatment.
5. Progressive has a duty of good faith and should not be allowed to deny coverage based on a “technical glitch.”

Progressive filed an answer brief in which it argued that the trial court properly entered summary judgment in its favor because:

1. Under the plain and unambiguous language of section 627.736(5)(e), Florida Statutes, FMIC was required to submit a properly completed D & A form as a condition precedent to filing suit.
2. The D & A form submitted was not properly completed and did not substantially comply with the statute.
3. Progressive did not waive its right to allege the non-compliance with the statutory requirement.

The circuit court, in its appellate capacity, issued an opinion affirming the county court’s summary judgment order. The circuit court held that the requirement of a D & A form under section 627.736, Florida Statutes, is a condition precedent to an action in court. The court held that waiver and estoppel and whether the first date is the only date affected are irrelevant to the condition being met; any recovery is precluded.

The Statute

Florida’s PIP statute has, from its inception, been a complicated piece of legislation, but the successive years of constant amendment and revision have both added to its complexity and detracted from its clarity. This is what has given rise to the widely divergent views of this issue. To understand, it is essential to be familiar with the relevant portions of both subsection (5), quoted above, and subsection (4) of 627.736. Subsection (4) provides, in pertinent part, as follows:

627.736 Required personal injury protection benefits; exclusions; priority; claims.—
(4)(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer ... when an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge....
This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge ivas in excess of that permitted under, or in violation of subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30 day time period for payment set forth in this paragraph.

(Emphasis added.) Progressive contends that the subsection 4(b) requirement of “written notice of the fact of a covered loss and the amount of the same,” includes the D & A form.

We are not persuaded by Progressive’s argument that submission of an incomplete D & A form is the equivalent of no written notice of a claim. The statute does not define “written notice of a covered loss and the amount of the same,” nor does it connect the D & A form to notice. The 4(b) requirement of notice and the 5(e) requirement of a D & A form are two distinct statutory duties. Before addition of the D & A form in 2003, the documentation provided by insureds was plenty sufficient to constitute “notice” of the claim. Depending on what is missing, even an incomplete D & A form could provide written notice of a claim. The documenting of treatment by attaching records to the D & A form, rather than listing treatments on the face of the form, is ample notice of the fact and amount of the loss under 4(b), even if it does not satisfy (5)(e). Progressive's argument that an incomplete D & A form does not provide written notice of a claim is also belied by payment, without protest, of the bills at issue.

Progressive’s theory that a D & A form is an essential component of notice rests mainly on subsection' (5)(e)5., which states that the “original completed disclosure and acknowledgement form shall be furnished to the insurer pursuant to paragraph (4)(b)....” (Emphasis added). Progressive reasons that since the statute states that the completed D & A form “shall” be furnished to the insurer, PIP benefits cannot be overdue in the absence of the submission of a properly completed D & A form. Moreover, the phrase “pursuant to paragraph (4)(b)” is intended to make the D & A form a component of notice since 4(b) is where the notice requirement is found. This argument, however, ignores the remainder of 5(e):

The original completed disclosure and acknowledgement form shall be furnished to the insurer pursuant to paragraph (4)(b) and may not be electronically furnished.

§ 627.736(5)(e)5., Fla. Stat. (2005) (emphasis added). This language suggests that subparagraph (5)(e)5. refers to the method of delivery of the D & A form, i.e., the original must be supplied to the insurer by mail and electronic transmission is not allowed. “Pursuant to paragraph (4)(b)” refers to the manner of furnishing, not what is furnished.

There is no language in paragraph (5)(e) that even suggests that failure to provide the properly completed form to the insurer is failure to provide “notice of the covered loss” to the insurer, or that such failure will render the provider’s bills not payable. If the Legislature had intended this result, it could have said so. We are not at liberty to re-write the statute. Seagrave v. State, 802 So.2d 281, 287 (Fla.2001).

Several circuit courts have held that a D <& A form is not the “written notice” contemplated by subsection (4)(b), see Theodore P. Vlahos, Inc. v. USAA Cas. Ins. Co., No. 07-11984-SC-44 (Fla. 6th Cir.Ct. July 9, 2008), and recently, the Third District Court of Appeal in United Automobile Insurance Co. v. Professional Medical Group, Inc., 26 So.3d 21 (Fla. 3d DCA 2009), made short work of this contention:

United argues that in order for it to have received notice of a covered loss, the initial and timely set of bills must include the D and A form as described in section 627.736(5)(e), and that this omission cannot be cured prior to litigation. We find both arguments to be without merit.

Id. at 23.

Progressive also assei'ts that the failure to correctly complete and deliver the initial D & A form precludes any further claims. According to Progressive, an incomplete D & A form is the equivalent of a failure to provide the written notice of a covered loss because subsection (5)(e)9. provides that, for subsequent treatments or services, the provider must maintain a patient log signed by the patient in chronological order by the date of service that is consistent with the services being rendered to the -patient as claimed. Progressive reasons that if there are no services set forth on the original D & A form then, even if a patient log is maintained, it would not reflect treatment consistent with the services being rendered “as claimed” because no services were ever effectively claimed. Progressive suggests that if the original D & A form does not set forth the services rendered on the form, there is “no way to establish that any subsequent treatment is consistent with those ‘claimed services.’ ” Progressive argues that if the only consequence of not having submitted a proper D & A form is that the provider is not entitled to be paid for the initial date of service, but is entitled to be paid for subsequent dates of service, the purpose of requiring the D & A form is defeated.

Contrary to the insurers’ position, applying the statute as written does not “defeat the entire purpose of requiring a D & A form.” A key purpose of requiring a D & A form is to insure that the medical provider has explained and rendered the services to the patient. The patient is required to sign the form attesting to the facts that the services were indeed performed, that the medical provider explained the services, that the insured was not solicited to seek services by the provider and that the patient is aware that he is entitled to a percentage of a reduction in benefits paid by the insurer if there is a billing error by the provider. See § 627.736(5)(e)l.a-e, Fla. Stat. (2005). The D & A form is to protect the patient as well as the insurance company, and the insured is not benefitted if the insurer is relieved of the duty to pay a legitimate charge the insured has incurred for treatment.

Neither the statute itself nor controlling case law supports Progressive’s interpretation of the consequence of submitting an incomplete D & A form. If the Legislature intended to require a complete D & A form as a condition precedent to the payment of all medical bills, the statute would have explicitly said so. The Florida Legislature included the tolling provisions in section 627.736 to allow an insurer to receive properly computed statements and bills irom which to make an informed decision to pay, as well as to allow the medical providers an opportunity to correct any mistakes in those billings. § 627.736(4)(b), Fla. Stat. (2008). The intent of the statute, which was to prevent fraud by having verifiable documentation that the services were actually performed and that the patient was advised as to the nature of the services, can be fulfilled even by an incomplete D & A form that is signed by the patient. Under (4)(b), a defect in a submitted claim has to be brought to the provider’s attention by the insurer so it can be rectified. Here, the insurers never notified the insureds in an EOB or by any other means, that the D & A form was insufficient for payment and, instead, partly paid the claims.

This brings us to Progressive’s contention that it does not waive its right to raise the incomplete D & A as a defense, even if it pays the claim, because it can raise the incomplete D & A as a defense at any time. This argument hinges on the interpretation of the phrase, “or in violation of,” contained in the very last sentence of subsection 4(b):

This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30 day time period for payments set forth in this paragraph.

According to Progressive, this provision would allow it to raise at any time that the claim was “in violation of subsection (5)” because a “completed” D & A form is one of the requirements of subsection (5).

The previously cited Lowery opinion of the Duval County Court at some length refuted this argument using a grammatical analysis of the language of the statute, applying the rules of statutory construction and reading subsection (4)(b) in pari materia with the remainder of the statute. The Lowery court concluded, and we agree, that this sentence does not allow the insurer unlimited time to assert that the claim was generally in violation of subsection (5); rather, this provision is limited to a claim that “the amount of the charge was in excess of that permitted” in subsection 5.

This understanding makes sense in light of the other provisions of subsection (5). Subsection (5) contains a number of limitations and express prohibitions on charges that may be made. For example, subsection (5)(b)2. sets limits on charges for certain thermograms, ultrasounds and other tests; subsection (5)(b)3. sets limits on charges for certain nerve conduction tests; subsection (5)(b)5. limits the amount of charges on MRI’s. The very first paragraph of subsection (5), subsection (5)(a), states that a provider cannot charge an amount in excess of the amount customarily charged for like services. The provision at issue in section 627.736(4)(b) is meant to allow the insurer at any time to dispute a bill that exceeds the amounts permitted to be charged in subsection (5). It does not allow an insurer unlimited time to make the global assertion that the D & A form was filled out incorrectly.

This understanding also makes sense given the preceding part of that same sentence in subsection (4)(b). The beginning of that sentence lists the claims that may be made at any time, even after payment. They are that the claim was “unrelated,” “not medically necessary” or “unreasonable.” Again, as noted by the Lowery court:

If the Legislature intended for subsection (4)(b) to say what Defendant reads it to say, the Legislature could simply have done that by allowing the assertion of “all claims or charges which violate subsection (5)” rather than describing the four types of assertions that can be raised or that the ‘amount of the charge was in excess of that permitted under, or in violation of subsection (5).’ That is, if an ‘amount of the charge was in excess’ of those permitted by subsection (5), it would then necessarily have been a “claim” made “in violation of subsection (5)” There would have been no need to include the limitation that the charges be “in excess” at all.

It is worth remembering that, in enacting the no-fault law, the Legislature expressed that the purpose of the PIP statute is to provide for medical, surgical, funeral and disability insurance benefits without regard to fault, and the Florida Supreme Court has characterized it as a near guarantee of “swift and virtually automatic payment” of reasonable and necessary medical, disability and funeral benefits to or on behalf of persons injured or killed in motor vehicle accidents. Florida’s no-fault laws are construed liberally in favor of the insured. See United Auto. Ins. Co. v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998).

Even if the insurers’ theory about “notice” were to prevail, when an insurer receives a claim and the provider’s D & A form is deemed deficient for some reason, the insurer can either pay or refuse to pay on the ground that proof without the proper D & A form is not notice. If the insurer fails to specify the defect in the form so that it can be rectified as contemplated by subsection (4), it will be deemed to have waived its objection to payment. There may be other measures that the insurer could take to obtain the form but once the insurer pays, it will not be heard to refuse payment because of a defect in the form. In Lake Worth Emergency Chiropractic, 15 Fla. Supp. 1227a (Fla. 17th Jud.Cir.2008), the court pointed out that subsection (4)(b) requires an insurer to notify a claimant if it considers providers’ submissions to be incomplete or defective and held that failure to do so and to afford the claimant an opportunity to correct any asserted defect estops the insurer from asserting any defect in the D & A form as a defense to payment. See also United Auto. Ins. Co. v. Amador, 15 Fla. Supp. 320a (Fla. 11th Cir.Ct.2008).

Finally, there is Progressive’s contention that compliance by the provider with section 627.736(5)(e) is a condition precedent to the right of the provider to access the courts to recover a claim unpaid by the insurer. Though not a component of “notice,” the providers indisputably do have the statutory duty to provide the original D & A form to the insurer. The PIP statute does not specify, however, any remedy for failure to correctly complete the form or even for the complete failure to furnish the insurer with this form. The question then becomes: “What is the consequence for failing to comply?” Progressive contends that if the courts fail to find that the remedy for the submission of a flawed D & A form is that the claim cannot be enforced by the courts, the duty “would be rendered meaningless.” First, the Florida statutes are filled with duties and requirements unaccompanied by penalties or consequences for noncompliance. The courts are not at liberty to manufacture one.

Second, nothing in the statute suggests that the submission of a flawless D & A form is a condition to the right to enforce a claim to payment. The Florida Legislature certainly knows how to create a condition precedent. Subsection (11) of the same statute expressly says: “As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation.” Finally, as the Third District Court in its recent United Automobile opinion observed, even if submission of the D & A form were a component of notice, the provider can certainly cure a defect in the completion of the form and submit it at any time before filing suit.

We deny Progressive American’s petition for certiorari in Case No. 09-889. We grant the petition of Florida Medical & Injury Center in Case No. 08-4005, quash the decision of the appellate panel and remand for disposition consistent with this opinion.

TORPY and COHEN, JJ., concur.

      . Pathway Wellness & Chiropractic Clinic, P.A. v. USAA Cas. Ins. Co., 16 Fla. Supp. 433b (Fla.2d Cir.Ct.2009); Lake Worth Emergency Chiropractic Ctr., P.A. v. Progressive Am. Ins. Co., 15 Fla. Supp. 1227a (Fla. 17th Cir.Ct. 2008); King v. United Auto. Ins. Co., 15 Fla. Supp. 430a (Fla. 11th Cir.Ct.2008); United Auto. Ins. Co. v. Amador, 15 Fla. Supp. 320a (Fla. 11th Cir.Ct.2008); Millennium Diagnostic Imaging Center, Inc. v. United Auto. Ins. Co., 15 Fla. Supp. 180a (Fla. 11th Cir.Ct. 2007); Preziosi West/East Chiropractic Clinic, P.A. v. Progressive Am. Ins. Co., 14 Fla. Supp. 789a (Fla. 18th Cir.Ct.2007); North Fla. Med. Clinic v. Progressive Select Ins. Co., 14 Fla. Supp. 689b (Fla. Duval Cty. Ct. May 1, 2007); Janowski v. Progressive Select Ins. Co., 14 Fla. Supp. 505a (Fla. Duval Cty. Ct. Mar. 8, 2007); Martin v. Progressive Pro Auto Ins. Co., 14 Fla. Supp. 394a (Fla. Duval Cty. Ct. Feb. 2, 2007); Eric G. Friedman, D.C., P.A. v. United Auto. Ins. Co., 13 Fla. Supp. 825a (Fla. 11th Cir.Ct. 2006); NW Broward Orthopaedic Assocs., P.A. v. United Auto. Ins. Co., 13 Fla. Supp. 740a (Fla. 17th Cir.Cl.2006); Weiss v. Progressive Express Ins. Co., 13 Fla. Supp. 395a (Fla. 18th Cir.Ct.2006); Ft. Lauderdale Pain Center, Inc. v. Allstate Ins. Co., 13 Fla. Supp. 1006a (Fla. Dade Cty. Ct. July 17, 2006); Hialeah Diagnostic, Inc. v. United Auto. Ins. Co., No. 05-3692-CC-23(04) (Fla. Dade Cty. Ct. Oct. 20, 2006); Juan Garcia v. UAIC, No. 05-1671-SP-24 (Fla. Dade Cty. Ct. Sept. 12, 2006); Professional Med. Group, Inc. v. United Auto. Ins. Co., No. 05-015912-CC-25 (Fla. Dade Cty. Ct. July 11, 2006); Integra Health Servs., Inc. v. United Auto. Ins. Co., No. 05-5274-CC-23(02) (Fla. Dade Cty. Ct. May 11, 2006); Cereceda + Assocs., M.D., P.A. v. United Auto. Ins. Co., No. 05-05280-CC-23(03) (Fla. Dade Cty. Ct. Jan. 25, 2006); Polina-Nosel, M.D., P.A. v. United Auto. Ins. Co., 12 Fla. Supp. 1190 (Fla. Broward Cty. Ct.2005); Asclepius Med. Inc. v. U.S. Sec. Ins. Co., 12 Fla. Supp. 778b (Fla. Dade Cty. Ct. May 27, 2005); Health Source Chiropractic, Inc. v. USAA Cas.

        Ins. Co., No. 08-10834CO-54 (Fla. 6th Cir.Ct. Oct. 12, 2009); Rainforest Rehab., Inc. v. United Auto. Ins. Co., No. 08-16272 COCE 50 (Fla. 17th Cir.Ct. May 8, 2009); Preziosi West/East Chiropractic Clinic, P.A. v. Progressive Express Ins. Co., No. 07-52-AP (Fla. 18th Cir.Ct. Jan. 15, 2009); United Auto. Ins. Co. v. Brown, No. 07-11616CACE (Fla. 17th Cir.Ct. July 24, 2008); Theodore P. Vlahos, Inc. v. USAA Cas. Ins. Co., No. 07-11984-SC-44 (Fla. 6th Cir.Ct. July 9, 2008); Preferred Medical & Rehab, Inc. v. Progressive Select Ins. Co., No. 07-27349 (Fla. Dade Cty. Ct. Aug. 20, 2008); Grossman v. United Auto. Ins. Co., No. 07-13714(01) (Fla. Dade Cty. Ct. July 17, 2008); Lowery v. Progressive Select Ins. Co., No. 16-2007-SC-6332 (Fla. Duval Cty. Ct. July 8, 2008); Kendall South Med. Center v. United Auto. Ins. Co., No. 06-6662 SP 26(02) (Fla. 11th Cir.Ct. Oct. 23, 2007); Orthopaedic Clinic v. Progressive Auto Pro Ins. Co., No. 05-SC-2783 (Fla. Seminole Cty. Ct. May 7, 2007); Advance Health Serv’s., III, Inc. v. United Auto. Ins. Co., No. 05-3715 CC 26(03) (Fla. 11th Cir.Ct. Oct. 12, 2006); Clark v. Progressive Express Ins. Co., No. 16-2006-SC-004375 (Fla. Duval Cty. Ct. Dec. 20, 2006); Bayou Chiropractic Center, P.A. v. USAA, No.2007SC-007154 (Fla. Escambia Cty. Ct. Mar. 13, 2008); Bayou Chiropractic Center, P.A., v. USAA, No. 2007-SC-007155 (Fla. Escambia Cty. Ct. Mar. 13, 2008).

      . Indeed, in several of the previously cited cases, the insurer’s position has been that it is entitled to recoup benefits "erroneously” paid out.

      . The year appears to be incorrect and should have been “2005.’'

      . We are in agreement with Progressive that attaching records of treatment without describing them on the face of the D & A form is not substantial compliance with this subsection. Subsection (5)(e)l.a. speaks of "sendees set forth therein,” i.e. in the form. Given that the purpose of the form is to inform the participant and deter fraud, the use of attachments to an incomplete form fails the statutory requirement.

      . Other circuit courts have held that payment of a claim, even at a reduced rate, demonstrates that an insurer received wrilten notice of a claim and precludes an argument (hat an incomplete D & A form does not provide the written notice contemplated by subsection 4(b). Weiss v. Progressive Express Ins. Co., 13 Fla. Supp. 395a (Fla. 18th Cir.Ct.2006); but see, North Fla. Med. Clinic v. Progressive Select Ins. Co., 14 Fla. Supp. 689b (Fla. Duval Cty. Ct. May 1, 2007); Ft. Lauderdale Pain Ctr., Inc. v. Allstate Ins. Co., 13 Fla. Supp. 1006a (Fla. Dade Cty. Ct. July 17, 2006).

      . At the county court level, some judges have concluded that the insurer is relieved of the duty of payment by section 627.736(5)(c)l., but that section plainly speaks of the "statement of charges.” It is impossible to fold the D & A form identified in (5)(e) into the statement of charges. The “Notice of Initiation of Treatment” referenced in (5)(c)I. is actually more akin to the D & A form.

      . See § 627.731, Fla. Stat. (2008).

      . Ivey v. Allstate Ins. Co., 774 So.2d 679, 683-84 (Fla.2000).

        .United Auto. Ins. Co. v. Prof'l Med. Group, Inc., 26 So.3d 21.


author: PER CURIAM. COHEN, J.,

text:
    George T. ANDREWS, Appellant, v. Thomas J. McPARTLAND and Sandra R. McPartland, Appellees.
    No. 5D08-3415.
    District Court of Appeal of Florida, Fifth District.
    Jan. 22, 2010.
    Rehearing Denied March 10, 2010.
    O. John Alpizar of Alpizar Law LLC, Palm Bay, and Marjorie Gadarian Graham, of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for Appellant.
    Sharon C. Degnan, of Kubicki & Draper, Fort Lauderdale, for Appellee.
   PER CURIAM.

AFFIRMED.

GRIFFIN, J., and BERGER, W., Associate Judge, concur.

COHEN, J., concurs specially with opinion.

COHEN, J.,

concurring specially.

Were I writing on a clean slate, 1 would reverse. The issue is whether a plaintiffs undifferentiated proposal for settlement that is served on two defendants, one of whose liability is undisputedly vicarious, is valid.

The facts are straightforward. George Andrews was injured in an automobile accident with Sandra McPartland. Mrs. McPartland was driving a vehicle she jointly owned with her husband, Thomas. Thomas’s liability was purely vicarious, based solely on his joint ownership of the vehicle. Andrews served an undifferentiated proposal for settlement, pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442, on the McPartlands for $175,000. The offer was rejected.

The lone issue at trial was damages; liability was not contested. The jury awarded Andrews compensatory damages exceeding $800,000, plus $7000 in punitive damages. Following entry of judgment, Andrews filed a motion for attorney’s fees which was denied, based on the supreme court’s decision in Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005). This appeal followed.

Although Lamb interpreted rule 1.442 to mandate differentiated offers under, apparently, any and all circumstances, a key fact underlying the holding was that the issue of vicarious liability was disputed. Although not acknowledged by the Lamb majority, this fact is duly noted by Justice Pariente in her concurrence. Id. at 1044. I agree, as Andrews argues, that because vicarious liability was undisputed in this case, Lamb is distinguishable. When vi-cai'ious liability is disputed, it may be possible to apportion liability. However, when it is not, requiring differentiated offers is problematic, as Justices Pariente, Anstead, and Lewis recognized in their concurrences.

I also do not believe the rule is intended to test the cleverness or “creativity” of counsel; it is intended to foster and encourage settlement. To require differentiated settlements when vicarious liability is undisputed is unworkable, and could potentially wreak havoc with jury instructions and verdict forms, resulting in additional litigation as lawyers struggle to give meaning to rule 1.442. In those circumstances, absent a reason for assessing individual responsibility, for all practical purposes, the defendants are one, and should be treated as such under the rule.

That said, while I believe Lamb is distinguishable, I do not believe our decision in D.A.B. Constructors, Inc. v. Oliver, 914 So.2d 462 (Fla. 5th DCA 2005), is distinguishable. We are bound by that prior decision. Therefore, I concur in affir-mance.


author: JACOBUS, J.

text:
    Shannon WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-3036.
    District Court of Appeal of Florida, Fifth District.
    Jan. 22, 2010.
    Rehearing Denied March 5, 2010.
    Shannon Wilson, Chipley, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   JACOBUS, J.

Petitioner, Shannon Wilson, seeks a belated appeal of his judgments and sentences in Citrus County case numbers 2006-CF-1388, 2006-CF-1396, and 2007-CF-195. See Fla. R.App. P. 9.141(c). This Court agrees with the Commissioner’s recommendation that the petition be denied.

PETITION DENIED.

SAWAYA and PALMER, JJ., concur.


text:
    OFFICE OF FINANCIAL REGULATION, Appellant, v. Robert G. NASH, Appellee.
    No. 5D09-1099.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 2010.
    Rehearing Denied March 11, 2010.
    Robert J. Sniffen and Todd D. Engel-hardt, of Sniffen & Spellman, P.A., Tallahassee, for Appellant.
    Edward R. Gay, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Rehman v. Florida Dep’t of Law Enforcement, 681 So.2d 854 (Fla. 5th DCA 1996).

SAWAYA, LAWSON and COHEN, JJ, concur.


text:
    Terry MACK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5830.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2010.
    Rehearing Denied March 4, 2010.
    Terry Mack, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(A).

KAHN, BENTON, and ROBERTS, JJ, concur.


author: PER CURIAM. COHEN, J,

text:
    Reuben SENIOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-144.
    District Court of Appeal of Florida, Fifth District.
    Jan. 29, 2010.
    Rehearing Denied March 5, 2010.
    Allan Campbell, Lake Mary, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED.

TORPY and EVANDER, JJ, concur.

COHEN, J, concurs specially, with opinion.

COHEN, J,

concurring specially.

This court, albeit another panel, has reversed the conviction of one of Appellant’s codefendants, Brian Harvey. Harvey also questioned the trial court’s denial of a requested independent act jury instruction. These opinions are not inconsistent because the evidence established that Appellant, unlike Harvey, was aware of the third codefendant’s plan to steal the victim’s money under the guise of a drug deal and was also aware that his codefendant was in possession of a firearm.

As in Roberts v. State, 4 So.3d 1261 (Fla. 5th DCA 2009), there was uncontroverted evidence that Appellant knew of the planned robbery, participated in it, and was aware that one of his cofelons was armed. The trial court did not err in failing to instruct on independent act.


text:
    Montrail COOK, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, and the State of Florida, Respondents.
    No. 1D10-0113.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2010.
    Rehearing Denied March 16, 2010.
    Montrail Cook, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

WEBSTER, PADOVANO, and ROWE, JJ., concur.


text:
    Ronald J. SYLVESTER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4285.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 2010.
    Rehearing Denied March 11, 2010.
    Ronald J. Sylvester, Zephyrhills, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Pfoutz v. State, 910 So.2d 946 (Fla. 5th DCA 2005).

GRIFFIN, LAWSON, and JACOBUS, JJ., concur.


author: LEVINE, J.

text:
    Thomson GALLAGHER, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION and Sofia Wings 1, LLC, Appellees.
    No. 4D08-3939.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 2010.

      Bonnie S. Satterfield of Bonnie S. Sat-terfield, P.A., Coral Springs, for appellant.
    Louis A. Gutierrez, Tallahassee, for ap-pellee State of Florida, Unemployment Appeals Commission.
   LEVINE, J.

We are presented with the question of what circumstances justify the denial of unemployment benefits by the Unemployment Appeals Commission (“Commission”). We find that the Commission incorrectly denied appellant unemployment benefits, and we reinstate the decision of the referee.

The facts of the case as summarized by the referee, and adopted by the Commission, are as follows:

The claimant began working for the employer on March 14, 2008, as a delivery driver. The claimant’s shift started at 11:00 am. On March 18, 2008, the claimant was prepared to go to work when he discovered that his vehicle’s transmission was broken. The claimant called the employer around 11:00 am to notify the manager that he would not be [able] to work because of car trouble. The manager told the claimant that they were busy and hung the phone up. The claimant called back and was not able to speak with the manager. The employer discharged the claimant for not showing to work effective March 19, 2008.

The referee held that, although appellant could not perform the job because his vehicle broke down, he was nevertheless entitled to unemployment compensation since his failure to perform the job requirements was “through no fault of his own.” The Commission reversed the referee’s determination, finding that appellant had a responsibility to report to work on time and his actions amounted to misconduct.

A referee’s “findings are to be accorded a presumption of correctness.” Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So.2d 498, 501 (Fla. 4th DCA 2004). The Commission may review the record to confirm there is a competent, substantial basis in the record for the referee’s findings of fact. Id. at 501-502. The Commission may not substitute its own findings of fact for the referee’s findings. Id. at 502. The appellate court reviews the legal conclusions of the Commission for clear error. Id.

An individual may be disqualified for unemployment benefits if he or she leaves “his or her work without good cause attributable to his or her employing unit or in which the individual has been discharged by his or her employing unit for misconduct connected with his or her work.” § 443.101(l)(a), Fla. Stat. (2008). In other words, an employee who is otherwise eligible for unemployment benefits may be disqualified for these benefits only by voluntary job abandonment or misconduct.

The central question to both the referee and the Commission was whether appellant’s conduct constituted misconduct. Misconduct is defined as follows: § 443.036(29), Fla. Stat. (2008). Courts and agencies are “required to liberally construe the statute in favor of the employee.” Mason v. Load King Mfg. Co., 758 So.2d 649, 655 (Fla.2000). Nevertheless, the employee can be denied benefits if his “misconduct” includes “[c]hronie or unauthorized absenteeism or tardiness over which the claimant has control.” Fla. Admin. Code R. 60BB-3.020(3)(b) (2008).

(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

In general, courts have held that an employee’s transportation problems do not constitute misconduct. For instance, where the claimant failed to report to work for three consecutive days due to transportation problems, a district court found that such actions did not constitute misconduct to deny benefits. Roberts v. Diehl, 707 So.2d 869 (Fla. 2d DCA 1998)

In Vega v. Florida Unemployment Appeals, 833 So.2d 310 (Fla. 3d DCA 2003), the claimant’s car broke down while on his way to work. The claimant did not call the employer until the next morning when he explained he would return to work when the car was fixed. When the claimant called four days later to state he would report to work the next day, the claimant was terminated. The referee found the facts constituted misconduct. The district court disagreed and found that the claimant’s “single transgression of failing to call” the day the claimant’s car first broke down “did not amount to misconduct under the statute and case law.” Id. at 311.

If the facts of Vega constituted “at best” an “isolated act of misjudgment,” then appellant also did not commit an act of misconduct sufficient to deny benefits. Id. Appellant did, in fact, call in to report his car problems, but the supervisor was “too busy” to take appellant’s calls. The referee found that appellant tried to contact his supervisor and that appellant did not disregard his duties to his employer.

Based on the foregoing, we find the referee was correct that appellant’s conduct did not constitute misconduct, and we reverse the decision of the Commission and reinstate appellant’s benefits.

Reversed.

GROSS, C.J., and WARNER, J., concur.

      . Initially, appellant was denied benefits for job abandonment, although that finding is not the basis of the referee’s or the Commission’s decision. In Gulf County School Board v. Washington, 567 So.2d 420 (Fla.1990), the Florida Supreme Court determined that an employee who is discharged because he cannot adequately perform the job is still entitled to unemployment benefits. The supreme court specifically overruled Neller v. Unemployment Appeals Commission, 510 So.2d 652 (Fla. 5th DCA 1987). In Neller, the district court determined that the failure to have a working car constituted job abandonment since the claimant "voluntarily” left his position by not providing his own vehicle for a delivery job. In Washington, by specifically overruling Neller, the court determined that an employee discharged for failing to meet a condition of employment, such as having a working car, is entitled to unemployment benefits.


author: ROTHENBERG, J.

text:
    E.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1597.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Rehearing Denied March 24, 2010.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, J.

The appellant, E.J., entered a plea of nolo contendere and an adjudication of delinquency was withheld on June 24, 2008, to burglary in Case No. J07-4252(B), grand theft in Case No. J07-7628, burglary of an unoccupied structure as a lesser included offense of burglary of a dwelling in Case No. J07-7611(C), grand theft of a firearm in Case No. J07-7473(A), criminal mischief in Case No. J07-7390(C), and burglary of an unoccupied structure as a lesser included offense of burglary of a dwelling in Case No. J07-7474(B). Based upon E.J.’s plea, the State nolle prossed numerous other counts including armed burglary (punishable by up to life in prison), and he was placed on probation.

On or about October 29, 2008, a probation affidavit was filed, alleging that E.J. violated his probation by: failing to reside in the home of his mother; violating his curfew; failing to attend school; and failing to appear for his scheduled intake at the Dade Marine Institute. The trial court conducted a probation violation hearing and found that the State proved by a preponderance of the evidence each of the violations alleged in the affidavit, and adjudicated E.J. delinquent. Although we conclude that the trial court erred in finding that E.J. violated his probation for failing to reside with his mother or to attend school, we affirm the remainder of the order under review and the finding that E.J. willfully violated his probation by failing to abide by his curfew and appear for his scheduled intake at the Dade Marine Institute.

A review of the orders placing E.J. on probation reflects that E.J. was not advised that as a condition of his probation he must live with his mother or regularly attend school. The probation order specifies that E.J. live and reside in the home of “parent(s).” E.J. testified that he lived and resided with his father when he did not live with or reside with his mother. Because his testimony was unrefuted and the probation order did not require that he live with and reside in only his mother’s home, we conclude that the trial court erred when it included this ground as one of the conditions of probation E.J. violated.

Likewise, while the probation order specifically lists attending school every day as a condition of probation, this condition, unlike many of the other listed conditions of probation contained in the order, was not checked off, thereby inferring that the trial court did not intend to make school attendance a condition of E.J.’s probation. We recognize that general conditions of probation explicitly authorized or mandated by Florida Statutes need not be orally pronounced at sentencing. See State v. Hart, 668 So.2d 589, 592 (Fla.1996) (stating that “ ‘general conditions’ of probation are those contained within the statutes ... [and] may be imposed and included in a written order of probation even if not orally pronounced at sentencing”); D.P.B. v. State, 877 So.2d 770, 772 (Fla. 4th DCA 2004) (holding that so long as a condition of probation is explicitly authorized or mandated by Florida Statutes, it is not mandatory that the trial court orally advise the defendant of the condition). However, where, as here, a juvenile probationer is given a form order of probation and some of the conditions are checked off and others are not, we conclude it was unclear, at best, that the probationer was being required to comply with the unchecked conditions.

Although we conclude that the trial court erred by finding that E.J. violated his probation by failing to reside in his mother’s home and by not regularly attending school, we affirm the portion of the trial court’s order finding that E.J. willfully violated his probation by failing to comply with his curfew and by failing to attend the scheduled intake appointment for the Dade Marine Institute. E.J.’s probation officer testified that he personally visited the Dade Marine Institute and determined that E.J. never appeared for his intake as ordered and E.J. admitted under oath at the probation violation hearing that he did not appear for his intake or attend the Dade Marine Institute. E.J.’s probation officer additionally testified that according to E.J.’s mother, E.J. violated his curfew on four occasions.

Because E.J.’s remaining violations were not based solely on hearsay, see Crawford v. State, 982 So.2d 1, 2 (Fla. 2d DCA 2008) (reversing the trial court’s order finding the defendant in violation of his probation based solely on hearsay testimony), and these violations were proven by a preponderance of the evidence, we affirm the findings by the trial court as to those violations. See E.P. v. State, 901 So.2d 193, 195 (Fla. 4th DCA 2005) (holding that the State need only establish a violation by a preponderance of the evidence); Wilson v. State, 781 So.2d 1185, 1187 (Fla. 5th DCA 2001) (noting that whether a violation of probation is willful and substantial is a factual issue that cannot be overturned on appeal unless there is no evidence to support it); Alvarez v. State, 638 So.2d 992, 993 (Fla. 3d DCA 1994) (affirming the revocation of the defendant’s probation for failing to attend her first probation appointment and making no attempt thereafter to schedule a meeting with her probation officer).

Because failure to report to the Dade Marine Institute is a substantial violation of E.J.’s probation, and this violation alone is sufficient to sustain a revocation of his probation, remand for reconsideration by the trial court is not required. See Matos v. State, 956 So.2d 1240, 1240 (Fla. 4th DCA 2007) (affirming revocation of community control after striking some of the violations but finding other violations were supported by the evidence); Butler v. State, 932 So.2d 306, 307 (Fla. 2d DCA 2006) (recognizing that when an appellate court reverses on a finding regarding one of the conditions of community control, remand is not required if the remaining violation or violations are substantial); Rawlins v. State, 711 So.2d 137, 137 (Fla. 5th DCA 1998) (finding unexcused absences from a treatment program, standing alone, may constitute a material violation); Johnson v. State, 667 So.2d 475, 475 (Fla. 3d DCA 1996) (finding that the defendant’s failure to attend G.E.D. classes, standing alone, was sufficient to revoke his probation).

In conclusion, because there are other substantial violations remaining, and they are supported by competent substantial evidence, we affirm the trial court’s order revoking E.J.’s probation.

Affirmed.


author: SCHWARTZ, Senior Judge.

text:
    LOWER KEYS MEDICAL CENTER, Petitioner, v. Jennifer WINDISCH, et al., Respondents.
    No. 3D09-3082.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Rehearing Denied March 19, 2010.
    Wicker, Smith, O’Hara, McCoy & Ford, P.A. and Michael R. D’Lugo, Key West, for petitioner.
    Ratzan & Rubio, P.A. and Stuart N. Ratzan, Miami; Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A. and Scott Mendlestein, Coral Gables; Lubell & Rosen, P.A. and Julie M. Ingle; and Res-tani, Dittmar & Hauser, P.A. and Patricia I. Murray, Coral Gables, for respondents.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The petitioner’s position in this case is directly contrary to Florida Hospital Waterman, Inc. v. Buster, 984 So.2d 478 (Fla.2008), and each of the other District Courts of Appeal. See West Fla. Reg’l Med. Ctr., Inc. v. See, 18 So.3d 676 (Fla. 1st DCA 2009); Lakeland Reg’l Med. Ctr. v. Neely, 8 So.3d 1268 (Fla. 2d DCA 2009); Columbia Hosp. Corp. of S. Broward v. Fain, 16 So.3d 236 (Fla. 4th DCA 2009); Fla. Eye Clinic, P.A. v. Gmach, 14 So.3d 1044 (Fla. 5th DCA 2009).

Even if we were inclined, which we are not, we do not have the authority to rule otherwise. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). The petitioner’s suggestion that we might do so is insulting and frivolous.

Certiorari denied.


author:
      PER CURIAM.
      COPE, J.

text:
    6-F CORPORATION, etc., et al., Appellants, v. BDP INTERNATIONAL FINANCE CORPORATION, LTD., etc., et al., Appellees.
    No. 3D08-3238.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Alvarez, Armas & Borron, J. Alfredo De Armas, and Arturo Alvarez, Coral Gables, for appellants.
    Patton Boggs, Read McCaffrey, and Christopher W. Hellmich, Washington, D.C.; and Holland & Knight, Rodolfo So-rondo, Jr., and llene L. Pabian, Miami, for appellees.
    Before COPE, GERSTEN, and SUAREZ, JJ.
   PER CURIAM.

6-F Corporation, First Affiliated Securities, Intertrade Development Corp., Top of the Bridge Corp., and Pedro Castillo (collectively “the defendants”) appeal an adverse final judgment in favor of Banco Dominicano Del Progreso, S.A., BDP International Finance Corporation, Caribbean Card Systems, Inc., and Crediprogreso, S.A. (collectively “the plaintiffs”). We affirm.

Pedro Castillo, individually and through his companies, stole millions of dollars from the plaintiffs. The plaintiffs sued the defendants for conversion, civil theft, fraud, breach of fiduciary duty, indemnification, and constructive trust and equitable lien. After a ten-day bench trial, the trial judge found in favor of the plaintiffs on all counts and awarded treble damages jointly and severally against the defendants on the civil theft count, amounting to approximately $80 million. The defendants appealed.

On appeal, the defendants contend that the trial court erred in awarding treble damages jointly and severally against all defendants on the civil theft claim. The plaintiffs assert that the award was proper. We agree with the plaintiffs.

The plaintiffs filed a civil theft claim that stated:

COUNT XII
CIVIL THEFT AGAINST DEFENDANT CASTILLO
180. Incorporated by reference, as if repeated, herein are all allegations of fact set forth in paragraphs 1 through 179.
181. Defendant Castillo wrongfully and without the knowledge, consent, or authorization of Plaintiffs, misappropriated funds belonging to Plaintiffs for his own use and/or benefit and/or for the use and/or benefit of Defendants 6-F Corporation, FAS, TOB, Intertrade Development and other of his sham companies.
182. Defendant Castillo obtained and retained these funds for his own use and/or benefit and/or for the use and/or benefit of Defendants 6-F Corporation, FAS, TOB, Intertrade Development and other of his sham companies with the felonious intent to commit a theft and to permanently deprive Plaintiffs of their lawful rights to those funds.
183. On June 1, 2006, Plaintiffs sent Defendant Castillo, through his counsel, a demand for the stolen funds. The Plaintiffs received no response nor have any of the funds been returned.
WHEREFORE Plaintiffs demand treble the amount of damages proven at trial.

Although the title of the civil theft count appeared to refer to Castillo individually, we find that it is clear from the body of the count that the plaintiffs intended 6-F Corporation, FAS, TOB, Intertrade Development, and other of his sham companies to be responsible for the civil theft. See Beseau v. Bhalani, 904 So.2d 641, 642 (Fla. 5th DCA 2005). Further, the civil theft count incorporates by reference all other allegations in the complaint that Castillo and the defendants should be held jointly and severally liable. See Acadia Partners, L.P. v. Tompkins, 759 So.2d 732, 736-37 (Fla. 5th DCA 2000).

Therefore, the trial court properly awarded treble damages jointly and severally against Castillo individually and against the other corporate defendants. Accordingly, we affirm the final judgment in favor of the plaintiffs.

Affirmed.

GERSTEN and SUAREZ, JJ., concur.

COPE, J.

(concurring in part, dissenting in part).

Plaintiffs-appellees sued defendants-appellants for, in substance, financial fraud. After a bench trial, the trial court found for the plaintiffs on their claims for conversion, breach of fiduciary duty, fraud, and civil theft. The trial court entered a multi-million dollar judgment on each count. On the civil theft count, the court entered a treble damage award of approximately eighty million dollars jointly and severally against all defendants.

The defendants are correct that the trial court erred in entering the treble damage award against the corporate defendants. There was only one civil theft count in the third amended complaint. That count was only filed against the individual defendant, Pedro Castillo, not against the corporate defendants. That count stated:

COUNT XII
CIVIL THEFT AGAINST DEFENDANT CASTILLO
180. Incorporated by reference, as if repeated, herein are all allegations of fact set forth in paragraphs 1 through 179.
181. Defendant Castillo wrongfully and without the knowledge, consent, or authorization of Plaintiffs, misappropriated funds belonging to Plaintiffs for his own use and/or benefit and/or for the use and/or benefit of Defendants 6-F Corporation, FAS, TOB, Intertrade Development and other of his sham companies.
182. Defendant Castillo obtained and retained these funds for his own use and/or benefit and/or for the use and/or benefit of Defendants 6-F Corporation, FAS, TOB, Intertrade Development and other of his sham companies with the felonious intent to commit a theft and to permanently deprive Plaintiffs of their lawful rights to those funds.
183.On June 1, 2006, Plaintiffs sent Defendant Castillo, through his counsel, a demand for the stolen funds. The Plaintiffs received no response nor have any of the funds been returned.
WHEREFORE Plaintiffs demand treble the amount of damages proven at trial.

Since by its express terms count twelve was asserted against defendant Castillo only, it follows that treble damages should have been entered against him alone, and not the corporate defendants.

The plaintiffs argue that there was a factual basis for imposition of joint and several liability against all defendants. That may be true, but no treble damage claim was pled against the corporate defendants. Therefore we should reverse the treble damage award against the corporate defendants.

I concur in affirming with regard to the defendants’ remaining points on appeal.


text:
    Corry MENCY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0432.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2010.
    Corry Mency, pro se, Petitioner.

      Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See English v. McCrary, 348 So.2d 293 (Fla.1977).

HAWKES, C.J., ROBERTS and CLARK, JJ., concur.


text:
    James FLEISHMAN, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D10-0151.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2010.
    James R. Fleishman, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(b).

KAHN, PADOVANO and WETHERELL, JJ., concur.


text:
    Richard L. KOHN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5040.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2010.
    Richard L. Kohn, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Richard L. Kohn, Jr., is hereby afforded a belated appeal from his judgment and sentence in Duval County Circuit Court case number 2008-CF-017342-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent Mr. Kohn in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

HAWKES, C.J., ROBERTS and CLARK, JJ., concur.


text:
    T.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2883.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    T.B., a juvenile, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See J.W.J. v. State, 994 So.2d 1223, 1224-25 (Fla. 1st DCA 2008).


text:
    Dederic L. RENDER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2822.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    Dederic L. Render, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


text:
    Damian Lavar BELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3264.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    Damian Lavar Bell, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


author: FARMER, J.

text:
    Domingo Antonio RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-438.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.
    Rehearing Denied April 7, 2010.
    Glenn H. Mitchell, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Defendant was charged and convicted of three counts of animal fighting for events occurring on a single day in April. Among other things, he appeals the refusal to suppress evidence because a search warrant was invalid and, alternatively, a denial of a judgment of acquittal because the evidence was legally insufficient to support the conviction. Although we agree with both, the latter requires that he be acquitted and discharged.

According to testimony of an investigating officer, she found over 100 animals on his property. In the backyard she found individually caged juvenile roosters, hens and chicks, dogs and parrots. In the garage she found adult roosters all individually caged in pens, travel boxes, and cardboard boxes. Several of the roosters she found had been trimmed and dubbed- — • meaning their feathers, combs, and wattles had been removed, which reduces the weight of the rooster and helps prevent overheating. One of the roosters had blood on his face.

She found a bag in the home containing lighters, glue sticks, elastic, nail clippers and butane. She testified that the glue sticks are used to attach spurs to the rooster and the nail clippers are used to trim the rooster’s natural spur. Another bag found in the garage held “identibands” to identify individual birds, teasers used to bait another rooster, sparring muffs which guard the rooster’s artificial spur so that it cannot injure its handler, duct tape to protect the rooster’s beak, a stopwatch, ointments and medications, and needles. One of the bottles contained a thick gel which could be used to stop bleeding quickly in fighting roosters. The bag contained antiseptic ointment which could be used for treating wounds and insulin syringes which could be used for injecting steroids. She also found testosterone which could be given to roosters to enhance their aggression. She recovered a blue travel bag commonly used to transport roosters because it keeps them quiet and is less noticeable than a cardboard box. Artificial spurs were also recovered from defendant’s kitchen.

The officer never witnessed any animal fighting during any of her visits to the property. Nor did she witness anyone baiting or attempting to induce birds to fight. Because of the particular breed of the birds, she conceded that if housed together in one cage they would kill each other. She admitted that the proper way to keep these birds was in separate cages. She admitted that arenas are typically used when the birds fight but there was no arena on defendant’s property. Particular breeds of roosters are trimmed and dubbed to signify them breed, similar to trimming certain breeds of dogs. Roosters are also trimmed and dubbed to prevent overheating and mites. Thus, the fact that the roosters in the garage were trimmed and dubbed does not refute innocent possession of such fowl. She had none of the seized items tested for blood. Although she had a CD of video surveillance from the property, she never watched it.

Another officer testified and recounted the items found in defendant’s home discussed by the previous officer. She explained how each item could be used in rooster fighting. She testified she observed B-12 vitamins and hormones on the property, that these are often used to increase lactic acid buildup in the muscles increasing stamina and decreasing fatigue. She decided to arrest defendant because of the items found on his property but never witnessed him training any birds to fight. Nor did she witness any act of animal fighting while she was on the property. She interviewed defendant at the police station, an audio tape of which was played for the jury. In the tape, defendant explains he was'preparing to move all of his fowl to a larger property owned by a family friend because he knew his chickens were bothering his neighbor. Defendant also explained that he used to bring some of the items found in his home to the Dominican Republic for his brother to use in cockfights there.

A man who had worked for defendant for three years testified he was there seven days a week caring for the animals. He never witnessed any birds being trained to fight or actually fighting.

The President of the Florida Delegation of the Game Bird Breeders Association testified about the game fowl breed. Game fowl is a particular type of domesticated poultry, he explained, suitable for the sport of cock fighting, but they are also used in shows. Game fowl’s natural instinct is to fight other fowl; hence it is appropriate to transport or keep them caged separately. He pointed out that fowl are trimmed to promote fertility and to control mites and are dubbed in order to promote fertility and vigor and prevent fowl pox. The fowl’s natural spur is commonly trimmed in order to prevent injury to the bird’s handlers. Muffs are also put on the birds in order to prevent injury to handlers. Various vitamins, including B-12, are used to promote health in the roosters and testosterone is commonly used to increase fertility. Supplements often labeled and marketed for cock fighting are simply high potency vitamins that are good for promoting the general health of farm fowl. He admitted during cross-examination that the stop watch, thread, and artificial spurs are not necessary for showing game fowl.

Defendant himself testified that he had owned roosters since he was very young in the Dominican Republic. After coming to the United States, he moved to Florida in 1992 when he learned that it was legal to own and breed roosters in Florida. Since 1992, he had owned about 1,500 roosters. He returns to the Dominican Republic about once a year and had visited there one month before the April search of his residence. Cock fighting is legal in the Dominican Republic. He admitted he attended cock fights while there. He conceded he brought some vitamins and supplements for his animals back in the duffel bags recovered by the authorities. He gave them to his animals to keep them healthy. The pill packs labeled with statements regarding cock fighting were purchased in a Palm Beach County feed store and were given to the birds to keep them healthy. He did not give his roosters the supplements to help them fight. He had never “fought” his roosters. He used the Quick Stop gel to stop the bleeding that often occurred after he clipped animals’ nails. He trimmed and dubbed his roosters for looks, breeding purposes, and to help them eat without wattles getting in the way.

Because police officers continuously visited him and threatened that they would one day gain access to his property, about a month before the execution of the search warrant defendant installed a surveillance system consisting of eight cameras. He reviewed the footage of the 28 days leading up to the execution of the search warrant and saw no animal fighting and no baiting of the roosters. Portions of the video were played for the jury and depicted his employee caring for roosters on a daily basis. It also showed defendant filing a rooster’s spur and placing a muff over it so his son could hold the fowl for the first time. The stuffed animal roosters the officer testified could be used for baiting were a gift defendant brought for his son from the Dominican Republic and a souvenir meant to bring a breeder good luck. The artificial spurs recovered from his kitchen drawer were intended to make a necklace.

The Animal Fighting Act provides:

(3) Any person who knowingly commits any of the following acts commits a felony of the third degree ...:
(a) Baiting, breeding, training, transporting, selling, owning, possessing, or using any wild or domestic animal for the purpose of animal fighting or baiting;
(b) Owning, possessing, or selling equipment for use in any activity described in paragraph (a);
(c) Owning, leasing, managing, operating, or having control of any property kept or used for any activity described in paragraph (a) or paragraph (b);
(d) Promoting, staging, advertising, or charging any admission fee to a fight or baiting between two or more animals;
(e) Performing any service or act to facilitate animal fighting or baiting, including, but not limited to, providing security, refereeing, or handling or transporting animals or being a stakeholder of any money wagered on animal fighting or baiting;
(g) Betting or wagering any money or other valuable consideration on the fighting or baiting of animals; or
(h) Attending the fighting or baiting of animals.
Notwithstanding any provision of this subsection to the contrary, possession of the animal alone does not constitute a violation of this section.

§ 828.122, Fla. Stat. (2007). Two things are clear from this statute. The first is that mere possession of the fowl is not evidence of the crime; the second is that all of the offenses within include the element- of animal fighting or baiting. We conclude that this statute requires some evidence of animal fighting or baiting beyond mere possession.

A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo. Burkett v. State, 992 So.2d 848, 851 (Fla. 4th DCA 2008). In cases where guilt is based entirely on circumstantial evidence, a judgment of acquittal should be granted “if the state fails to present evidence from which the jury could exclude every reasonable hypothesis except that of guilt.” Id. (quoting Darling v. State, 808 So.2d 145, 155-56 (Fla.2002)). As the court explained in State v. Law, 559 So.2d 187 (Fla.1989), the state is required to introduce competent, substantial evidence inconsistent with defendant’s theory of events. 559 So.2d at 189.

Defendant’s testimonial evidence of defense was that he never had any intent to use his birds in illegal animal fighting. Defendant adduced positive evidence that he owned the birds solely as pets, as he had his entire life, and that his birds were not used for fighting or baiting. Moreover he adduced evidence that the materials found on his premises and the condition in which the fowl were being kept was consistent with his evidence of mere possession without fighting or baiting.

The State argues his theory of defense was refuted by the recovery of a stop watch from one of the duffel bags located on defendant’s property and a bird who had blood on his face when the search warrant was executed. We conclude that the recovery of the stop watch and the bird with blood on the face are not legally sufficient, competent evidence inconsistent with his testimony. Law, 559 So.2d at 189. Under the statute defining the crime being tried and the burden imposed by the cases, the State was required to produce additional evidence directly refuting defendant’s evidence. See Johnston v. State, 863 So.2d 271, 284 (Fla.2003) (reasoning that defendant’s testimony explaining presence of fingerprints at scene in circumstantial evidence case imposed burden on State rebutting explanation to make prima facie case of guilt); Jaramillo v. State, 417 So.2d 257 (Fla.1982) (circumstantial evidence that defendant’s fingerprints found at murder scene insufficient to support first-degree murder convictions where State failed to adduce evidence fingerprints could have been placed only when murder committed). The failure of the state to do so means that the trial court erred in denying the motion for judgment of acquittal.

Reversed for judgment of acquittal.

HAZOURI, J., and BOWMAN, JOHN B., Associate Judge, concur.