author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Mark AGENOR, DOC #H50722, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3759
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Mark Agenor appeals the judgments and sentences entered following his nolo contendere pleas to ten charges in three different circuit court cases. Following independent review of the record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we ordered supplemental briefing addressing whether the trial court erred in imposing on six of those sentences a mandatory minimum term of ten years' imprisonment pursuant to section 775.087(2)(a)(1), Florida Statutes (2015), for possessing a firearm or destructive device. With the benefit of that briefing, we now reverse the mandatory minimum provisions on those six sentences.

In pertinent part, the State charged Agenor with three counts of robbery with a deadly weapon, see § 812.13, Fla. Stat. (2015) ; one count of attempted robbery with a deadly weapon, see §§ 812.13, 777.04, Fla. Stat. (2015) ; one count of burglary of a conveyance with "an air pistol or BB gun, a dangerous weapon or explosive," see § 810.02, Fla. Stat. (2015) ; and one count of attempted burglary of a conveyance "with a deadly weapon," see §§ 810.02, 775.087, 777.04, Fla. Stat. (2015). Agenor pleaded nolo contendere to those charges and to four other charges pursuant to a plea agreement, but the parties did not agree to a particular sentence. At sentencing, the trial court imposed ten-year mandatory minimum terms of imprisonment on the six counts specified above pursuant to section 775.087(2)(a)(1), the "10/20/life" statute.

As the State appropriately concedes, this was error. To pursue an enhanced mandatory minimum sentence under the 10/20/life statute, "the [S]tate must allege the grounds for enhancement in the charging document, and the jury must make factual findings regarding those grounds." Bienaime v. State, 213 So.3d 927, 929 (Fla. 4th DCA 2017) (citing Lane v. State, 996 So.2d 226, 227 (Fla. 4th DCA 2008) ). A ten-year mandatory minimum sentence under that statute, therefore, requires that the State plead and prove beyond a reasonable doubt-or, in the case of a guilty or nolo contendere plea, that the defendant stipulate-that the defendant actually possessed a " 'firearm' or 'destructive device.' " § 775.087(2)(a)(1) ; see Murray v. State, 133 So.3d 557, 558 (Fla. 1st DCA 2014) ("In the context of plea deals, 'the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.' " (quoting Blakely v. Washington, 542 U.S. 296, 310, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ) ).

The State, however, did not allege a firearm in connection with any of the charges: it alleged a "deadly weapon" or "dangerous weapon," and although a firearm may qualify as a deadly or dangerous weapon, not all deadly or dangerous weapons are firearms. Cf. Reeder v. State, 399 So.2d 445, 446 (Fla. 5th DCA 1981) ("The jury could have found that an assault occurred and that the pistol or object used constituted a deadly weapon but that the State failed to prove beyond a reasonable doubt that the pistol met the statutory definition of a 'firearm.' "). In addition, although the attempted-burglary-of-a-conveyance charge generally cited section 775.087, that general citation was insufficient to notify Agenor of the potential applicability of section 775.087(2)(a)'s ten-year mandatory minimum sentence to that charge or to any other charge. See Bienaime, 213 So.3d at 929-30 ("The [S]tate also cannot rely on grounds alleged in one count to support an enhanced mandatory sentence on another count. Finally, if the [S]tate wishes to give notice of an enhancement by reference to a statute in the charging document, the [S]tate must refer to the specific subsection which subjects the defendant to the enhanced sentence." (citation omitted) (first citing Bryant v. State, 744 So.2d 1225, 1226 (Fla. 4th DCA 1999) ; then citing Inmon v. State, 932 So.2d 518, 520 (Fla. 4th DCA 2006) ) ).

The only specific allegation of a weapon was included in the charge of burglary of a conveyance with a dangerous weapon or explosive, and the weapon alleged was "an air pistol or BB gun." There is no question that a BB gun can qualify as a deadly or dangerous weapon supporting felony reclassification under section 775.087(1). See, e.g., Dale v. State, 703 So.2d 1045, 1046-47 (Fla. 1997) ; Mitchell v. State, 698 So.2d 555, 558 (Fla. 2d DCA), approved, 703 So.2d 1062 (Fla. 1997) ; Santiago v. State, 900 So.2d 710, 711 (Fla. 3d DCA 2005). But a BB gun cannot qualify as a "firearm" for purposes of imposing a mandatory minimum sentence under the 10/20/life statute.

Coley v. State, 801 So.2d 205, 206 (Fla. 2d DCA 2001) (" Mitchell explicitly holds that a BB gun does not fit the definition of a firearm."). Thus, none of the charges supported the trial court's imposition of ten-year mandatory minimum sentences.

Moreover, as part of his nolo contendere pleas, Agenor did not stipulate either to his possession of a firearm or to the applicability of the 10/20/life statute. Agenor's plea form included no factual basis for the pleas, and the provision acknowledging the possibility of sentencing "as 10/20/L" is not checked off. Cf. Ibarra v. State, 45 So.3d 911, 912 (Fla. 4th DCA 2010) (rejecting Ibarra's challenge to the firearm mandatory minimum based on his assertion that his offense had involved only a BB gun because, among other things, "[t]he plea form that appellant signed advised him that his plea would subject him to a ten-year mandatory minimum sentence"). At the plea hearing, the court recited the charges consistently with the charges set forth in the charging documents, which did not allege a "firearm"; did not inform Agenor of any potential mandatory minimum sentence; and requested neither that the State proffer nor that Agenor stipulate to any factual basis for the pleas, let alone a factual basis establishing Agenor's possession of a firearm. Cf. id. ("The trial court advised appellant during the plea colloquy that he would receive a ten-year mandatory minimum if the court declined to sentence him as a youthful offender. Appellant did not object to the factual basis recited by the State which alleged that appellant wielded a 'firearm' during the offense."); Bradley v. State, 971 So.2d 957, 959 (Fla. 5th DCA 2007) (rejecting Bradley's challenge to the firearm mandatory minimum because he had "stipulat[ed] to the facts alleged in the complaint affidavit (which stated that he had discharged a firearm during the commission of the robbery)" when entering his plea), approved, 3 So.3d 1168 (Fla. 2009). Moreover, we note that at the sentencing hearing, the parties and the court were all in accord that the offenses had involved only BB guns, not firearms.

Accordingly, we affirm the judgments of conviction on all ten offenses and affirm four of Agenor's sentences, but we reverse the six sentences discussed herein to the extent that we remand for the trial court to strike the ten-year mandatory minimum terms of imprisonment on those six sentences.

Affirmed in part; reversed in part; remanded.

NORTHCUTT and VILLANTI, JJ., Concur.

      The State only generally cited the applicable statutes and did not identify the subsections on which it relied.

      The burglary statute uses the term "dangerous weapon," not "deadly weapon." See generally § 810.02.

      And, in fact, a defendant who possesses a firearm or destructive device during the commission of a burglary of a conveyance is subject to a three-year, not a ten-year, mandatory minimum sentence. See § 775.087(2)(a)(1).

      We have recognized that "deadly" and "dangerous" are used interchangeably in this context. See Mitchell v. State, 698 So.2d 555, 560 & n.6 (Fla. 2d DCA 1997).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HOME OUTLET, LLC, Appellant, v. HMC ASSETS, LLC Solely in Its Capacity as Separate Trustee for Cam XVIII Trust and Glen Abbey Community Association, Inc., Appellees.
    Case No. 5D18-1382
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 26, 2019 Rehearing Denied May 01, 2019
    Christopher R. Turner, of Christopher R. Turner, PLLC, Orlando, for Appellant.
    Ashland R. Medley, of Ashland Medley Law, PLLC, Coral Springs, for Appellee, HMC Assets, LLC Solely in its Capacity as Separate Trustee for CAM XVIII Trust.
    No appearance for other Appellees.
   PER CURIAM.

AFFIRMED. See Bartram v. U.S. Bank Nat'l Ass'n , 211 So.3d 1009, 1020-21 (Fla. 2016) ; Singleton v. Greymar Assocs. , 882 So.2d 1004, 1008 (Fla. 2004).

BERGER, EDWARDS and HARRIS, JJ., concur.


author: Jay, J.

text:
    Donna Leah T. BREWER, LPN, Appellant, v. FLORIDA DEPARTMENT OF HEALTH, BOARD OF NURSING, Appellee.
    No. 1D17-2179
    District Court of Appeal of Florida, First District.
    March 28, 2019 Rehearing Denied May 01, 2019
    Cynthia A. Mikos and Jamie A. Klapholz of Johnson Pope Bokor Ruppel & Burns, LLP, Tampa, for Appellant.
    Katelyn R. Boswell, Assistant General Counsel, and Christine E. Lamia, Chief Appellate Counsel of Florida Department of Health, Tallahassee, for Appellee.
   Jay, J.

Donna Brewer appeals the Final Order entered by the Florida Department of Health, State Board of Nursing, permanently revoking her license as a licensed practical nurse. We reverse.

I

In a two-count administrative complaint, the Department of Health alleged that Brewer had violated section 464.018(1)(e), Florida Statutes (2015) ("Title XXXII Regulation of Professions and Occupations": "Nursing" - "Disciplinary actions"), by having (1) entered a plea of nolo contendere to a charge of burglary of an unoccupied dwelling, an offense listed in section 435.04(2)(z), Florida Statutes ("Level 2 screening standards"), and (2) by failing to report the fact of her plea to the Board of Nursing in violation of section 456.072(1)(x), Florida Statutes ("Grounds for discipline; penalties; enforcement"). The accompanying Investigative Report includes Brewer's judgment and sentencing documents. They document that adjudication was withheld on the burglary offense and she was sentenced to ninety days in the county jail. No further elaboration on the circumstances of the burglary of the unoccupied dwelling are contained in the report or anywhere else in the record.

II

The entry of a plea of nolo contendere to "any offense prohibited under s. 435.04" constitutes grounds for disciplinary action by the Board of Nursing under section 464.018(1)(e). Section 435.04(2)(z) lists burglary in section 810.02, Florida Statutes, as a qualifying offense. Section 464.018(2) authorizes the Board to "impose any of the penalties in s. 456.072(2) against any ... licensee who is found guilty of violating any provision of subsection (1) of this section." In turn, section 456.072(2)(b), Florida Statutes (2015), empowers the Board to impose a penalty of "suspension or permanent revocation of a license."

Section 456.079(1), Florida Statutes, authorized the Board "to adopt by rule ... the disciplinary guidelines applicable to each ground for disciplinary action which may be imposed" by the Board. In due course, the Board promulgated Florida Administrative Code Rule 64B9-8.006 (2012)-the version applicable to the date of Brewer's alleged violations-setting forth disciplinary guidelines to be followed by it when sanctioning a licensed nurse. Pointedly, rule 64B9-8.006(3)(c)1., provides that the entering of a plea of nolo contendere to burglary subjected Brewer to a minimum sanction of "reprimand" to a maximum sanction of a "$ 10,000 fine and suspension" for a first offense. Then again, rule 64B9-8.006(5)(a) entitles the Board "to deviate from the foregoing guidelines upon a showing of aggravating or mitigating circumstances by clear and convincing evidence , presented to the Board prior to the imposition of a final penalty at informal hearing." (Emphasis added.) Those circumstances include, but were not limited to, the following:

1. The danger to the public.
2. Previous disciplinary action against the licensee in this or any other jurisdiction.
3. The length of time the licensee has practiced.
4. The actual damage, physical or otherwise, caused by the violation.
5. The deterrent effect of the penalty imposed.
6. Any efforts at rehabilitation.
7. Attempts by the licensee to correct or stop violations, or refusal by the licensee to correct or stop violations.
8. Cost of treatment.
9. Financial hardship.
10. Cost of disciplinary proceedings.

(Emphasis added.)

Clear and convincing evidence is " 'of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.' " S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC , 139 So.3d 869, 872 (Fla. 2014) (quoting Slomowitz v. Walker , 429 So.2d 797, 800 (Fla. 4th DCA 1983) ). The clear and convincing evidence standard precludes ambiguous evidence. Westinghouse Elec. Corp. v. Shuler Bros. , 590 So.2d 986, 988 (Fla. 1st DCA 1991).

At an April 6, 2017, hearing-in just over two minutes-the Board addressed the administrative complaint against Brewer and voted on the penalty. The assistant attorney general serving as legal counsel for the Board read the charges in the complaint and advised the Board to find that they constituted a violation of its "Practices Act." A motion was made and seconded, and the vote in favor of counsel's advice was unanimous. Counsel then informed the Board that the Department of Health's recommended penalty was "revocation" and suggested, "given the matter of record , [the Board] go above the disciplinary guidelines." (Emphasis added.) He observed that "burglary is a serious crime," but before he could finish his statement, a member of the Board said: "The egregious nature of the crime." Another member stated, "So moved." The motion was seconded and the vote to accept the reason was unanimously approved. Another member suggested, "How about deterrent?" The first board member responded, "Yes, it is also known as - also as a deterrent effect. So moved." The motion was again seconded and the vote in favor was also unanimous. The hearing ended.

III

Section 120.68(7)(e), Florida Statutes, requires an agency's exercise of discretion to be consistent with its rules. "A board's imposition of a penalty ... is reviewed for an abuse of discretion." Kale v. Dep't of Health , 175 So.3d 815, 817 (Fla. 1st DCA 2015) (citing to Mendez v. Fla. Dep't of Health , 943 So.2d 909, 910 (Fla. 1st DCA 2006) ). The standard of review of the agency's findings of fact is that of "competent substantial evidence." § 120.68(7)(b), Fla. Stat.; see also De Groot v. Sheffield , 95 So.2d 912, 916 (Fla. 1957).

In the present case, the evidence "of record" upon which the Board relied to find the offense "egregious" and the sanction of revocation a "deterrent" was not just ambiguous, it was nonexistent. The Board already had in place in its 2012 rule a range of sanctions for a plea of nolo contendere to burglary. There was nothing in the record before the Board or stated with particularity by the Board in its Final Order, elucidating the circumstances of Brewer's offense that would render it more egregious than the offense of burglary already contemplated by the rule. Nor did the Board explain how deviating upward to the revocation of Brewer's license would act to deter her from committing further burglaries any more than would imposing the maximum sanction of a "$ 10,000 fine and suspension" for a first offense as provided in the Board's rule. In short, there was no clear and convincing evidence before the Board to support its departure from the recommended range of sanctions.

Accordingly, there being no competent, substantial evidence in the record to support its decision, we must conclude that the Board abused its discretion in revoking Brewer's license.

IV

The Final Order is hereby set aside, and the cause is remanded to the Board of Nursing for further proceedings consistent with this opinion. See § 120.68(6)(a) 1., Florida Statutes.

B.L. Thomas, C.J., and Bilbrey, J., concur.


author: SLEET, Judge.

text:
    Harvey L. LINEN, DOC #493480, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3691
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    Howard L. Dimmig, II, Public Defender, and Keith W. Upson, Special Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Harvey L. Linen challenges his convictions and sentences for felony leaving the scene of a crash with injury and misdemeanor leaving the scene of a crash with property damage in circuit court case number 15-CF-011658 and the resulting revocation of his probation in circuit court case number 10-CF-004623. Because Linen's two convictions are based on true inconsistent verdicts, we must reverse Linen's conviction and sentence for leaving the scene of a crash with property damage. However, we affirm Linen's conviction for leaving the scene of a crash with injury and the resulting revocation of probation without further comment.

Both of the charged offenses arose from an automobile accident in which Linen twice rear-ended a vehicle driven by his wife. The second impact caused the victim to lose control of her car, veer off the roadway, and strike a utility pole. Thereafter, Linen lost control of his truck, and it landed on its side near the victim's car. Linen left the scene of the crash on foot. As a result of the crash, the victim suffered bodily injury and her car sustained property damage. At trial, the jury found Linen guilty of both leaving the scene of a crash with injury and leaving the scene of a crash with property damage.

As a general rule, inconsistent jury verdicts are permitted in Florida. Inconsistent verdicts are allowed because jury verdicts can be the result of lenity and therefore do not always speak to the guilt or innocence of the defendant....
This Court has recognized only one exception to the general rule allowing inconsistent verdicts. This exception, referred to as the "true" inconsistent verdict exception, comes into play when verdicts against one defendant on legally interlocking charges are truly inconsistent.... [T]rue inconsistent verdicts are "those in which an acquittal on one count negates a necessary element for conviction on another count."

State v. Powell, 674 So.2d 731, 732-33 (Fla. 1996) (citations omitted) (quoting Gonzalez v. State, 440 So.2d 514, 515 (Fla. 4th DCA 1983) ).

Here, the jury found Linen guilty of violating sections 316.027(2)(a) and 316.061(1), Florida Statutes (2015). Section 316.027(2)(a) provides as follows:

The driver of a vehicle involved in a crash occurring on public or private property which results in injury to a person other than serious bodily injury shall immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and shall remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062. A person who willfully violates this paragraph commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

And section 316.061(1) provides:

The driver of any vehicle involved in a crash resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop such vehicle at the scene of such crash or as close thereto as possible, and shall forthwith return to, and in every event shall remain at, the scene of the crash until he or she has fulfilled the requirements of s. 316.062. A person who violates this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(Emphasis added.)

The evidence presented at trial established that Linen willfully left the scene of a crash and that the victim suffered both physical injury to her person and property damage to her vehicle. As such, the evidence supports the jury's finding of guilt as to the leaving the scene with injury charge. But because the plain language of section 316.061(1) allows for a conviction under that section when the crash results only in property damage, a jury finding that the crash resulted in physical injury to the victim necessarily negates that required element of section 316.061(1) ; in other words, if the crash resulted in physical injury, it cannot have resulted only in property damage. See Peterson v. State, 775 So.2d 376, 377-78 (Fla. 4th DCA 2000) ("The jury's finding of guilt for leaving the scene of an accident with injuries negated a necessary element of the other crime, leaving the scene of a 'crash resulting only in damage to a vehicle.' "). Accordingly, the jury's guilty verdicts on both offenses are true inconsistent verdicts.

We therefore reverse Linen's conviction for the misdemeanor offense. See id. at 378. But we affirm the conviction for felony leaving the scene of a crash resulting in injury and the revocation of Linen's probation in case number 10-CF-004623.

Affirmed in part; reversed in part.

VILLANTI and ATKINSON, JJ., Concur.

      Although Linen did not raise this argument in the trial court, because Linen was convicted of an offense where an essential element could not be proven, the error is fundamental. See Proctor v. State, 205 So.3d 784, 789 (Fla. 2d DCA 2016).

      It is clear from the record before us that the inclusion of the misdemeanor on Linen's Criminal Punishment Code scoresheet did not affect the sentences imposed on the felony count and in case number 10-CF-004623.


author: VILLANTI, Judge.

text:
    Curay J. DAVIS, a/k/a Curay Jerome Davis, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-892
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   VILLANTI, Judge.

Curay Jerome Davis challenges the trial court's imposition of a $ 500 fine and 5% surcharge. Davis properly preserved this issue by filing a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). The State responded by arguing that the fine was a mandatory fine, relying on section 893.13(1)(d)(3), Florida Statutes (2017). But the statute did not factually apply to Davis's case because he was not charged with the sale of a controlled substance within 1000 feet of a proscribed location. Rather, the fine was discretionary and the trial court was thus required to pronounce the statutory authority for the fine, section 775.083, Florida Statutes (2017). See Perdue v. State, 17 So.3d 1283 (Fla. 2d DCA 2009) (holding that the trial court erred in failing to orally pronounce the statutory authority for the discretionary $ 525 fines and surcharges).

Because the trial court erred by failing to orally pronounce the statutory authority, we remand for entry of a corrected judgment striking the $ 500 fine and 5% surcharge. In all other respects, we affirm.

LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    VILLA VERDE CONDOMINIUM ASSOCIATION, INC., a Florida Non-Profit Corporation, Appellant, v. KOPELOUSOS CONSTRUCTION COMPANY, INC., Greene International Real Estate, Inc., W & J Construction Corporation, W & J Construction Co., LLC, Drawdy Brothers Construction II, Inc., et al, Appellees.
    Case No. 5D17-4112
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 2, 2019 Rehearing Denied April 29, 2019
    Steven R. Schooley, of The Schooley Law Firm, Orlando, for Appellant.
    Derek J. Angell, of O'Connor & O'Connor, LLC, Orlando, for Appellee, Kopelousos Construction Company, Inc.
    No Appearance for Other Appellees.
   PER CURIAM.

AFFIRMED. See Quaregna v. Strategic Performance Fund II, Inc., 943 So.2d 265, 267 (Fla. 4th DCA 2006) ("[E]ach party seeking a trial de novo must file an individual timely request for trial de novo.").

ORFINGER, LAMBERT and GROSSHANS, JJ., concur.


author: BLACK, Judge.

text:
    Omar Rushawn BUGGS, a/k/a Omaro Rushawn Buggs, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4040
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019.
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Omar Buggs challenges the order revoking his probation and the resulting sentences. We affirm the revocation order without comment, but because Buggs's sentence for possession of cocaine is illegal, we reverse and remand for resentencing on that count.

In 2015 Buggs pleaded guilty to delivery of cocaine within 1000 feet of a public housing facility, a first-degree felony punishable by up to thirty years in prison, see §§ 775.082(3)(b)(1), 893.13(1)(f)(1), Florida Statutes (2014), and to possession of cocaine, a third-degree felony punishable by up to five years in prison, see §§ 775.082(3)(e), 893.13(6)(a). Buggs was sentenced to concurrent terms of two years' community control followed by three years' probation. In June 2017, the State filed a second amended affidavit alleging that Buggs had violated several conditions of his probation. At the conclusion of the evidentiary hearing, the court found that Buggs willfully and substantially violated his probation and revoked his probation. A Criminal Punishment Code (CPC) scoresheet was prepared for sentencing. Buggs's total sentence points were 79.4, and the lowest permissible sentence was 38.55 months in prison. Buggs was sentenced to fifty-eight months in prison followed by one year of probation on both counts. Buggs then filed this appeal.

Buggs argues, and the State agrees, that the court erred in sentencing him to fifty-eight months in prison followed by one year of probation for possession of cocaine as this sentence exceeds the statutory maximum for the offense and was not required under the CPC. During the pendency of this appeal, Buggs filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court denied the motion with respect to this issue, ruling as follows:

It has long been held that where an information contains more than one count but each is a facet or phase of the same transaction, only one sentence may be imposed, and the sentence which should be imposed is for [the] highest offense charged. See Williams v. State, 69 So.2d 766 (Fla. 1953) ; see also Thornton v. State, 306 So.2d 205, 206 (Fla. 1st DCA 1975) (holding that possession of dangerous drugs charge was but another facet of delivery charge and thus sentence could be imposed only on delivery charge as the highest offense); Wilson v. State, 293 So.2d 81, 82 (Fla. 3d [DCA] 1974) (holding there was no error in adjudication that defendant was guilty under both counts of information which charged the sale and possession of heroin, but only one sentence could be imposed and sentence should be for the highest offense charged). Because [Buggs] was sentenced to fifty-eight (58) months' prison followed by one (1) year probation, his sentence does not exceed the statutory maximum as allowed by law and conforms to Florida's established law regarding sentencing where multiple counts in a single information are facets of the same transaction.

However, section 775.021(4), which was amended in 1988 by adding subsection (4)(b), see ch. 88-131, § 7, Laws of Fla., requires separate convictions and sentences for offenses which were committed during the course of the same transaction:

(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.

§ 775.021(4)(a), (b) (emphasis added).

In State v. McCloud, 577 So.2d 939, 940 (Fla. 1991), the supreme court held that the amended statute did not prohibit separate convictions and sentences for the sale of a controlled substance and possession of that same controlled substance. Thereafter, in Davis v. State, 581 So.2d 893, 894 (Fla. 1991), the supreme court held that the same analysis set forth in McCloud applied to Davis's convictions and sentences for the delivery and possession of a controlled substance.

The cases relied upon by the trial court predate the 1988 amendment to section 775.021(4) and have no bearing on this case. Pursuant to section 775.021(4) and McCloud and its progeny, Buggs was properly sentenced separately for the possession of cocaine conviction. Moreover, because Buggs's sentence for possession of cocaine-which includes a prison term and probation-exceeds the statutory maximum for a third-degree felony, it is illegal. See § 775.082(3)(e) ; Kelly v. State, 816 So.2d 1221, 1222 (Fla. 2d DCA 2002). We therefore reverse Buggs's sentence for possession of cocaine and remand for resentencing.

Affirmed in part, reversed in part, and remanded for resentencing.

KELLY and SLEET, JJ., Concur.

      Delivery of cocaine was the primary offense, and possession of cocaine was scored as an additional offense.

      Buggs raised an additional issue in his rule 3.800(b)(2) motion, and the court granted the motion with respect to that issue.

      And even had the trial court been correct in concluding that "only one sentence may be imposed" in this case, the appropriate course of action under the line of cases cited by the trial court would have been to vacate the conviction and sentence for possession of cocaine and only sentence Buggs for delivery of cocaine as the highest offense charged. See Williams v. State, 69 So.2d 766, 767 (Fla. 1953) ; Thornton v. State, 306 So.2d 205, 206 (Fla. 1st DCA 1975), reversed in part on other grounds, 327 So.2d 227 (Fla. 1976) ; Wilson v. State, 293 So.2d 81, 82 (Fla. 3d DCA 1974) ; see also Caivano v. State, 276 So.2d 245, 245 (Fla. 2d DCA 1973) (holding that though Caivano was convicted of both possession of cocaine and sale of cocaine, he should have only received one sentence for the highest offense charged since the offenses were facets of the same transaction).


author: LUCAS, Judge.

text:
    Trevor DOOLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-368
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019.
    William R. Ponall of Ponall Law, Maitland, for Appellant.
    Ashley Moody, Attorney General, Tallahassee; Brandon R. Christian and Bilal Ahmed Faruqui (substituted as counsel of record) Assistant Attorneys General, for Appellee.

      Briefing and argument in this case were concluded prior to Ashley Moody's election as Attorney General.

   LUCAS, Judge.

Trevor Dooley and David James got into an argument over whether a teenager should be allowed to skateboard on a basketball court. By the end of the encounter, Mr. James had been shot dead by Mr. Dooley. We are called upon to decide whether the jury in Mr. Dooley's trial was given a fundamentally erroneous instruction about Mr. Dooley's "Stand Your Ground" defense under sections 776.012 and 776.013(3), Florida Statutes (2010). Initially, the State conceded error on this issue, but following the issuance of an opinion from this court remanding the case for a new trial, the State filed a motion for rehearing withdrawing its concession. This court, in turn, withdrew its prior opinion and, pursuant to Florida Rule of Appellate Procedure 9.141(d), granted Mr. Dooley's petition for a new appeal solely as to the issue of fundamental error in the jury instructions. See Dooley v. State, 206 So.3d 87 (Fla. 2d DCA 2016).

With the benefit of a record, briefing, and oral argument, we must now agree with Mr. Dooley that the instructions provided to his jury concerning his defense to the charges of manslaughter and openly displaying a firearm were fundamentally erroneous. We explain why below.

I.

On September 26, 2010, Mr. James and his then eight-year-old daughter were playing basketball at a park in the Twin Lakes subdivision in Valrico. A couple was playing tennis on an adjacent tennis court. And a teenager, S.A., was skateboarding. S.A. had asked Mr. James if he had any objection to his skateboarding, and Mr. James replied he did not.

Mr. Dooley lived in a house across the street from the park. Spotting S.A. from his garage, he began yelling at S.A., "You're not allowed to skateboard," or words to that effect. As S.A. started to leave, Mr. James responded to Mr. Dooley to show him where the signs prohibiting skateboarding were, because he had told S.A. it was alright with him for S.A. to keep skating. Mr. Dooley returned to his garage but then emerged a couple of minutes later and crossed the street to the edge of the basketball court. Mr. James approached Mr. Dooley, and the two men had a terse and heated argument. According to the testimony of the couple on the tennis court (who, by this time, had stopped playing to watch what was happening), Mr. Dooley lifted his shirt, revealing the butt of a gun, and said "fuck you" to Mr. James. All the witnesses who testified, including Mr. Dooley who testified in his own defense, agreed that Mr. Dooley then turned his back on Mr. James and began to walk away toward his house. He made it about four or five steps when Mr. James grabbed him from behind and turned him around to continue the argument. The testimony was in conflict about what precisely happened next, but suffice to say, the two began to wrestle. During the struggle, Mr. Dooley drew his Kel-Tec 32 semiautomatic pistol from his pants, Mr. James tried to grab it with a hand, and Mr. Dooley fired a single shot. The bullet went through Mr. James' chest, and he died shortly thereafter.

Mr. Dooley was subsequently charged with one count of manslaughter with a weapon under sections 782.07(1) and 775.087(1)(b), Florida Statutes (2010), one count of improper exhibition of a firearm pursuant to section 790.10, Florida Statutes (2010), and one count of openly displaying a firearm under section 790.053. Mr. Dooley asserted a claim of immunity pursuant to section 776.032(1), Florida Statutes (2010) ("A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person ...."), which the circuit court denied following an evidentiary hearing. His case proceeded to a jury trial on November 13, 2012, and the defense was again brought before the jury.

With minor discussion, both the State and the defense agreed to utilize Standard Jury Instruction 3.6(f) to govern Mr. Dooley's Justifiable Use of Deadly Force defense. That instruction, as given, amalgamated sections 776.012(1) and 776.013(3) together into a single instruction. In pertinent part, it read as follows:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Trevor E. Dooley is charged if the death of David Kenneth James resulted from the justifiable use of deadly force.
....
The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself while resisting
1) Another's attempt to murder him or
2) Any attempt to commit aggravated battery on a person 65 years of age or older or aggravated battery upon him.
Additionally, a person is justified in using deadly force if he reasonably believes that such force is necessary to prevent
1) Imminent death or great bodily harm to himself, or
2) The imminent commission of aggravated battery on a person 65 years of age or older or aggravated battery against himself.
However, the use of deadly force is not justifiable if you find:
1) Trevor E. Dooley initially provoked the use of force against himself unless:
a) The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on David Kenneth James; or
b) In good faith the defendant withdrew from physical conduct with David Kenneth James and clearly indicated to David Kenneth James that he wanted to withdraw and stop the use of deadly force but David Kenneth James continued or resumed the use of force.
In deciding whether the defendant was justified in using deadly force you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force , including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony such as aggravated battery on a person 65 years of age or older or aggravated battery.
....
If you find that the defendant who because of threats or prior difficulties with David Kenneth James had reasonable grounds to believe he was in danger of death or great bodily harm at the hands of David Kenneth James, then the defendant had the right to arm himself. However, the defendant cannot justify the use of deadly force if after arming himself he renewed his difficulty with David Kenneth James when he could have avoided the difficulty. Although as previously explained, if the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat.
....
If in your consideration of the issue of self-defense, you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.
However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find him guilty if all of the elements of the charge have been proved.

(Emphasis added.) The verdict form, which was stipulated between Mr. Dooley and the State, did not include any special interrogatory findings regarding any aspect of Mr. Dooley's self-defense claim; rather, it simply asked whether the jury found Mr. Dooley guilty or not guilty on each of the three charges and whether Mr. Dooley had been carrying, displaying, using, threatening to use, or attempting to use a firearm in connection with the manslaughter charge.

During closing statements, the State and the defense largely focused their presentations on various disputes in the evidence adduced at trial. However, at one point, the prosecuting attorney did weigh in on his view of the legal elements underlying Mr. Dooley's defense:

He's in a park with children and he brings a gun and he flashes it and then he draws it out. And this is really the stand your ground part. If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force.... Well think about it, ladies and gentlemen. If you [are] not engage[d] in an unlawful activity, the minute he went into that park and he showed that gun to David James and said, "F you. Fuck you. Screw you" whatever, he's committed a crime. That's a crime. It's called improper exhibition of a weapon. And the minute he did that he's not entitled to that stand your ground. Because he is no longer engaged in lawful activity. He's committing a crime. So that stand your ground that you've heard all about, doesn't apply to him because he's already violated the law. And ask yourself, and that's part of the law.

(Emphasis added.) Ultimately, the jury found Mr. Dooley guilty of all three counts as charged.

In the appeal now before us, Mr. Dooley acknowledges that he did not raise a substantive objection to the use of Standard Jury Instruction 3.6(f) during his trial. However, he contends the instruction was fundamentally erroneous because in two separate paragraphs-that were emphasized by the assistant state attorney in the State's closing statement-his defense was improperly curtailed by the issue of whether Mr. Dooley had been engaged in "unlawful activity." While that limitation may pertain to section 776.013(3), Mr. Dooley argues, there was no such limitation on the defense available under section 776.012(1). Because the instruction failed to distinguish between the two statutory sections and their respective elements, the jury was erroneously led to believe that if indeed Mr. Dooley unlawfully displayed his pistol, he could not avail himself of any part of his Stand Your Ground defense.

We must agree with Mr. Dooley's argument.

II.

We observe two points at the outset. The parties stipulated to using a standard jury instruction on the issue of Mr. Dooley's defense. And Mr. Dooley never raised an objection along the line of the argument he now raises. These are both important concerns for purposes of Mr. Dooley's appeal, but they are not dispositive. Although a standard jury instruction such as the one at issue here has something akin to a presumption of correctness, "the trial judge still retains the responsibility of correctly charging the jury." State v. Floyd, 186 So.3d 1013, 1022 (Fla. 2016). That responsibility includes giving instructions that are not "confusing, contradictory, or misleading." Butler v. State, 493 So.2d 451, 452 (Fla. 1986). "[T]he yard stick by which jury instructions are measured is clarity, for jurors must understand fully the law that they are expected to apply fairly." Floyd, 186 So.3d at 1018 (quoting Perriman v. State, 731 So.2d 1243, 1246 (Fla. 1999) ). So, too, while the lack of an objection may indicate that there is no perceptible problem with a standard instruction, Floyd, 186 So.3d at 1023, an appellate court can still review the content of a jury instruction for fundamental error, see Reeves v. State, 647 So.2d 994, 995 (Fla. 2d DCA 1994) ("[A] misleading jury instruction constitutes both fundamental and reversible error subject to appellate review even in the absence of an objection." (citing Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985) ) ). The Florida Supreme Court summarized in Roberts v. State, 242 So.3d 296 (Fla. 2018), that

[i]n order for jury instructions to constitute fundamental error, "the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error" and "occurs only when the omission is pertinent or material to what the jury must consider in order to convict."

Id. at 298 (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991) ).

The standard instruction was fundamentally erroneous in this case. The confusion this instruction created can be discerned by first examining how the versions of sections 776.012(1) and 776.013(3) in effect at the time of this incident interacted with each other. Both sections are part of the same defense; but they held subtle-and important-distinguishing characteristics, a point we explained at length in Little v. State, 111 So.3d 214 (Fla. 2d DCA 2013) :

We conclude that the plain language of sections 776.012, 776.013, and 776.032 can be understood as granting immunity to a person who qualifies under either section 776.012(1) or 776.013(3)....
....
Section 776.013(3) applies when a person is (1) not engaged in an unlawful activity and (2) attacked in any place outside the "castle" as long as (3) he or she has a right to be there. A person who does not meet these three requirements would look to section 776.012(1) to determine whether the use of deadly force was justified. The presumptions in sections 776.013(1) and (4) apply only when a person is attacked in the "castle." And the presumption in section 776.013(1) does not apply if the person was engaged in an unlawful activity. See § 776.013(2)(c).
The requirements under sections 776.012(1) and 776.013(3) are not identical. A person proceeding under section 776.013(3) would have to prove that he or she reasonably believed the use of deadly force was "necessary ... to prevent death or great bodily harm ... or to prevent the commission of a forcible felony." Under section 776.012(1), a person would have to prove that he or she reasonably believed the use of deadly force was "necessary to prevent imminent death or great bodily harm ... or to prevent the imminent commission of a forcible felony." (Emphasis added.)
As for criminal immunity, a person engaged in an unlawful activity would not be entitled to claim immunity under section 776.032(1) based on the use of force as permitted in section 776.013(3). But section 776.013(3) provides only one means of obtaining immunity under section 776.032(1). Section 776.012(1) provides another means of obtaining immunity for individuals who would not qualify for immunity under section 776.013(3). And section 776.032(1) expressly provides for immunity based on the use of force as permitted in section 776.012.

Id. at 219-21. We concluded in Little that while the defendant's status of being a felon in illegal possession of a firearm may have precluded him from availing himself of the protection of section 776.013(3) in his second-degree murder trial, he could still seek immunity based on section 776.012(1). Id. at 222.

The district courts of appeal have universally agreed on this point: what distinguishes 776.012(1) from 776.013(3)-in particular, whether the defendant had been engaged in "unlawful activity" at the time of the threat-impacts the viability of a Stand Your Ground defense. See generally Andujar-Ruiz v. State, 205 So.3d 803, 806-07 (Fla. 2d DCA 2016) ("[B]ecause [Appellant] was entitled to raise a defense under section 776.012(1), the trial court's instruction that he had a duty to retreat if he was engaged in unlawful activity effectively deprived [Appellant] of his sole defense and constituted fundamental error."); Little, 111 So.3d at 219, 221 (concluding that immunity applies to a person who qualifies under either section 776.012(1) or 776.013(3), therefore the defendant's status as a felon in illegal possession of a firearm did not preclude a claim of immunity under section 776.012(1) and the trial court erred in denying motion to dismiss on the basis that the defendant was precluded from seeking immunity because he was engaged in an unlawful activity); McGriff v. State, 160 So.3d 167, 168 (Fla. 1st DCA 2015) (holding that the trial court abused its discretion when it instructed the jury that "if [Appellant] was engaged in an unlawful activity, [his] use of deadly force was not justified if he could have reasonably and safely avoided the use of deadly force by retreating" because it was an "incorrect statement of then-existing law" where section 776.012(1) does not provide for a duty to retreat); Miles v. State, 162 So.3d 169, 171-72 (Fla. 5th DCA 2015) (concluding that the trial court erred in determining that the defendant was not entitled to immunity because he was engaged in unlawful activity because "under the prior Stand Your Ground law, a defendant could assert immunity under section 776.012 even if he or she was engaged in an unlawful act at the time"); Dorsey v. State, 149 So.3d 144, 147 (Fla. 4th DCA 2014) (concluding that the instruction regarding the defendant's duty to retreat was fundamental error because reference to the defendant's duty to retreat was unnecessary as the defendant did not have a duty to retreat under section 776.012(1) ); Rios v. State, 143 So.3d 1167, 1170 (Fla. 4th DCA 2014) (holding that the trial court instructing the jury on duty to retreat was fundamental error because the defendant was entitled to protection of "Stand Your Ground law" pursuant to section 776.012(1) and the "jury instruction, which was not necessary because Defendant did not have a duty to retreat under Florida's Stand Your Ground law, effectively eliminated Defendant's sole affirmative defense").

The problem with the instruction in the case before us is that there was nothing whatsoever to guide the jury through the distinctions between sections 776.012(1) and 776.013(3) -or even alert the jury that the two sections were distinct-where both parts of Mr. Dooley's Stand Your Ground defense were presented together. The substance of both sections were essentially lumped together within the same instruction. Accord Little, 111 So.3d at 223 (Northcutt, J., concurring) ("[W]hatever we may or may not think about the existence of meaningful distinctions between the statutes, we cannot doubt that the legislature intended them to be independent justifications for the use of deadly force."). There was no direction as to how the differing elements of sections 776.012(1) and 776.013(3) interacted for purposes of a Stand Your Ground defense. So one would have read this instruction-in which section 776.013(3)'s "unlawful activity"

qualification appears twice in separate paragraphs immediately following section 776.012(1)'s imminent threat instruction-as a singular, unitary set of elements. Certainly, it appears that was how the State understood the instruction in presenting closing arguments to the jury.

Thus, the instruction, as presented in this case, would lead one to conclude that Mr. Dooley's right to stand his ground "and meet force with force" was, in all instances, predicated on whether he had been engaged in unlawful activity. And that was simply not true under the applicable version of section 776.012(1). See Andujar-Ruiz, 205 So.3d at 806-07 ; Little, 111 So.3d at 221 ; McGriff, 160 So.3d at 168 ; Miles, 162 So.3d at 171-72 ; Dorsey, 149 So.3d at 147 ; Rios, 143 So.3d at 1170. Mr. Dooley would have been deprived of his only defense at trial to the charges of manslaughter and openly displaying a firearm if the jury concluded, as it ultimately did, that he had been engaged in unlawful activity when he resorted to using deadly force.

III.

As the Florida Supreme Court aptly observed in Floyd, "the justifiable use of force is recognized as a somewhat complex area of law that will necessarily yield complex jury instructions." 186 So.3d at 1022. The trial court did not have the benefit of our decision in Little when it gave this instruction in Mr. Dooley's case. Unfortunately, the instruction that was given improperly conflated, and thereby confused, the statutory distinctions we discerned in Little. And so we must reverse Mr. Dooley's judgments and convictions for manslaughter with a weapon and openly carrying a firearm because the instruction pertaining to his defense to those charges was fundamentally erroneous. We remand his case for a new trial on those counts.

However, from our review of the record in this case, we cannot conclude that this error impacted Mr. Dooley's conviction for improper exhibition of a weapon. If, as it appears, the jury accepted the testimony that Mr. Dooley first flashed the butt of his pistol at Mr. James in a threatening manner before their argument had turned into an altercation, then the erroneous Stand Your Ground instruction would not appear to constitute a defense to that offense. On cross-examination, Mr. Dooley stated unequivocally that he felt neither alarmed nor threatened by Mr. James when Mr. James asked to see where the no skateboarding signs were. And none of the remaining witnesses described Mr. James' actions-prior to the physical altercation with Mr. Dooley-as threatening. Mr. Dooley has not asserted that the error in this jury instruction would pertain to count 2 of his criminal prosecution, much less explain how. Accordingly, we affirm his conviction as to that count.

Affirmed in part; reversed in part; remanded.

NORTHCUTT and KELLY, JJ., Concur.

      Pursuant to Dennis v. State, 51 So.3d 456, 463 (Fla. 2010), Mr. Dooley had filed a motion to dismiss, which precipitated what is now often referred to as a "Stand Your Ground hearing" before the presiding judge. We make no comment about any aspect of that hearing.

      Pinning the precise degree of assumed correctness to approved standard jury instructions seems to be an exercise of elusive measurement. On the one hand, the Florida Supreme Court has held that standard jury instructions "are published under this Court's authority and are presumed to be correct." BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 292 (Fla. 2003) (citing Freeman v. State, 761 So.2d 1055, 1071 (Fla. 2000) ). On the other hand, that pronouncement has come to be tethered to so many qualifications it leaves one to wonder whether what remains could truly be said to be a presumption. In Floyd, for example, the court noted that when it approves a standard instruction it does not express an opinion on the instruction's correctness, that standard instructions "serve merely as guidelines that are subject to the trial judge's modifications," and that the failure to timely object to an instruction may have some bearing on whether the jury instruction is perceived as confusing or misleading. 186 So.3d at 1022-23.

      Neither the State nor Mr. Dooley ever moved to sever counts two and three from the manslaughter charge in count one.

      In some respects, the confusion here resembles that sometimes seen with the use of asyndetons-the omission of conjunctive or disjunctive signals within a list-which "can suggest the essential unity of the items .... [or] can also be used to evoke a sense of disorder." See Encyclopedia of Rhetoric and Composition: Communication from Ancient Times to the Information Age 41 (Theresa Enos ed., 1996); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 119 (2012) ("Sometimes drafters will omit conjunctions altogether between the enumerated items .... This technique is termed asyndeton .... But because such a construction could be read as a disjunctive formulation, most drafters avoid it.").
      We would also note that the instruction, as it was given, introduces the term "duty to retreat" to the jury by stating when that duty (whatever a juror might understand it to be) would not arise. This lingering reference is likely due to the fact that prior to 2005, a "duty to retreat" existed in Florida common law and was formerly a substantive part of the self-defense instruction. That duty was effectively supplanted by the Stand Your Ground law. See Kumar v. Patel, 227 So.3d 557, 559 (Fla. 2017) ("The Stand Your Ground law in Florida eliminates the common law duty to retreat before using force in self-defense ....").

      Section 776.012 was amended, effective June 20, 2014, so that that section would, henceforth, apply only to "[a] person ... not engaged in a criminal activity." See ch. 2014-195, § 3, Laws of Fla. We agree with the Fourth District's conclusion that this amendment was substantive in nature, see Dorsey, 149 So.3d at 146 n.2 ; Rios, 143 So.3d at 1170 n.3, so that the change in this part of the defense would not affect Mr. Dooley's case on remand. See Smiley v. State, 966 So.2d 330, 335, 337 (Fla. 2007) (concluding that amendment to section 776.013 incorporating "no duty to retreat" was a substantive change in the law "because it alter[ed] the circumstances in which it is considered a criminal act to use deadly force without first needing to retreat" and, that therefore, "article X, section 9 of the Florida Constitution makes it constitutionally impermissible for section 776.013 to receive retroactive application").

      Section 790.10 defines improper exhibition of a firearm as follows: "If any person having or carrying any ... firearm ... shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree." Section 790.053(1) prohibits openly carrying a firearm, which is defined as "openly carry[ing] on or about his or her person any firearm .... It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense." The State never explained how counts 2 and 3 were distinguished in this case (and neither party provided us with a copy of the charging instrument in the record). There were no interrogatory questions within Mr. Dooley's verdict form. However, it appears clear to us that the conviction for improper exhibition was predicated on the evidence that Mr. Dooley unlawfully displayed the butt of his pistol in a threatening manner at Mr. James prior to the physical struggle, which ended when Mr. Dooley drew his gun and shot Mr. James.


text:
    Terry Lee HAYNES, Jr., DOC #C04289, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-133
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019
    Terry Lee Haynes, Jr., pro se.
   PER CURIAM.

Affirmed without prejudice to Appellant's right to file a timely and facially sufficient motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

LaROSE, C.J., and MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Christopher SCHOFIELD, Petitioner, v. Grady C. JUDD, Sheriff of Polk County Respondent.
    Case No. 2D18-4827
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019
    Howard L. Dimmig, II, Public Defender, Robert Young, General Counsel, and Scott Toliver, Assistant Public Defender, Bartow, for Petitioner.
    Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Respondent.
    Peter P. Sleasman and Kristen Cooley Lentz, Gainesville, for Amicus Curiae Disability Rights Florida.
   LUCAS, Judge.

Christopher Schofield has filed a petition for a writ of habeas corpus and writ of certiorari challenging his continued detention in the Polk County jail for violating conditions imposed by the circuit court ostensibly under Florida Rule of Criminal Procedure 3.212(d). We previously granted Mr. Schofield's habeas petition by an unpublished order on January 24, 2019. This opinion explains why we so ruled.

I.

On December 12, 2015, Mr. Schofield was seen on Park Street in Lakeland selling the contents of an apartment. When asked by a Lakeland police officer how he had obtained access to the locked, vacant apartment complex, Mr. Schofield responded that he had purchased (or was in the process of purchasing) the entire complex from a woman he could only describe as "Mrs. Mary." He could not take the officer to meet Mrs. Mary, Mr. Schofield claimed, because he never traveled by roads to reach her residence. After making contact with the actual owner of the apartment complex, the officer arrested Mr. Schofield. He was eventually charged with burglary of an unoccupied dwelling, violation of a permanent domestic violence injunction, and failure to register as a career offender.

Mr. Schofield's appointed counsel filed a motion to have Mr. Schofield's competence evaluated. After receiving a report and evaluation from a court-appointed expert, the circuit court entered an order on April 13, 2016, adjudicating Mr. Schofield incompetent to proceed. Pursuant to section 916.13(1), Florida Statutes (2015), he was committed to the Department of Children and Families (DCF) for the purpose of restoring his competency in the criminal case.

Mr. Schofield remained in a state hospital for approximately a year and a half. On September 22, 2017, a letter cosigned by the state hospital's facility administrator and its legal counsel was sent to the circuit court informing the presiding judge that Mr. Schofield was unlikely to regain competency in the foreseeable future. The letter further indicated that Mr. Schofield's "recovery team" was of the opinion that he would meet the criteria for involuntary examination under section 394.463, Florida Statutes (2016), of the Baker Act. The letter cited to Mosher v. State, 876 So.2d 1230 (Fla. 1st DCA 2004), and suggested to the circuit court that "individuals whose competence is non-restorable no longer meet the criteria for commitment pursuant to [ section 916.13, Florida Statutes (2017) ] and therefore, should either be released or the State shall initiate civil commitment proceedings."

Mr. Schofield then filed a "Motion to Dismiss Due to Being Incompetent and Non-Restorable." The circuit court appointed another committee to evaluate Mr. Schofield, received their reports, and held a hearing, but decided to deny Mr. Schofield's motion because, according to the circuit court's order, five years had not yet elapsed since the time Mr. Schofield had been found incompetent. However, the court did not initiate a Baker Act proceeding. Instead, on May 31, 2018, the circuit court entered an "Order Granting Release Following Commitment," which released Mr. Schofield from State custody but subject to ten court-monitored conditions. These conditions included prohibitions against possession of any weapons or ammunition, consumption of alcohol, or possession of controlled substances without a prescription. The order also required Mr. Schofield to receive outpatient treatment at the Peace River Center, to "report for further evaluation at specified times during the release periods ... as specified by the court," and to appear at subsequent court status hearings. In the order, the circuit court retained jurisdiction over Mr. Schofield and scheduled a status conference for November 19, 2018.

When Mr. Schofield failed to appear for the November 19 status conference, the circuit court issued a capias warrant for Mr. Schofield's arrest. Ten days later Mr. Schofield was brought before the court. During that hearing, the State informed the circuit court that not only had Mr. Schofield violated the court's release conditions, he had also been arrested for trespass and for violating an injunction order. With respect to the case that was before the court-which, again, Mr. Schofield had already been found incompetent and nonrestorable to proceed under-the presiding judge expressed some understandable frustration:

THE COURT: [I] don't know what to do with him. I mean these cases sort of revert to pretrial release cases rather than commitment cases, meaning those rules govern what I'm supposed to do. The pretrial release rules, I should say. But then he remains incompetent, so he sits and rots in the jail, because he's committing new crimes while under orders of essentially pretrial release.
....
MR. TOLLIVER [counsel for Mr. Schofield]: And the idea that he's incompetent, I mean he couldn't resolve those cases if he chose to. He couldn't go to trial if he chose to. There's nothing he can do to resolve everything and release himself from jail to move forward in these cases.
We're - the way that the law is written for competency with this whole five day - five years and you can't move to dismiss prior to kind of leaves everyone's hands tied.
THE COURT: So maybe I should test it and just hold him in jail and leave it up to you to get the right rulings that are needed for these types of cases from a higher court.
I don't know what else to do, Mr. Tolliver, other than to hold him without bail having violated not only a condition of his release, but having committed a new crime while released ....
I don't know what else to do, and I would be happy to have some guidance as to what to do, because, you know, DCF is not going to pay for him anymore, because he doesn't meet the criteria. So ... they can't help us find some residential placement for him where we can have some assurances that he's not going to be violating orders of the Court -
MR. TOLLIVER: Well, Your Honor -
THE COURT: - until the State is either willing to dismiss these charges or the time comes to dismiss the charges.
MR. TOLLIVER: There are mechanisms available to the State if they chose to go [that] route, they could.
THE COURT: Well, but they're the same ... I assume you're talking about civil commitment.
MR. TOLLIVER: Correct.
THE COURT: The standard is the same. The criteria for civil commitment is identical to the criteria for commitment [for restoration under section 916.13 ]. So they could never prove that case if they sought civil commitment. ... So I guarantee you if he were Baker Acted, he might be held for a few days or a few weeks, but then would be released without any civil commitment to follow because he doesn't respond to treatment.
MR. TOLLIVER: Well, I just - to make my record clear for the record is that it's our position that he ought to be released, because he has no ability to - he's incompetent and he has no ability to be restored which has been previously determined.

The court disagreed and ruled that Mr. Schofield would be held in jail without bond for violating a condition in the May 31 order. Mr. Schofield now challenges that detention in the petition before us.

II.

"The purpose of the ancient and high prerogative writ of habeas corpus is to inquire into the legality of a prisoner's present detention." McCrae v. Wainwright, 439 So.2d 868, 870 (Fla. 1983). Habeas corpus is an appropriate and frequently invoked remedy to challenge the legality of a petitioner's pretrial detention or restraint. See Bush v. State, 74 So.3d 130, 133 (Fla. 1st DCA 2011) ; Schwartz v. Neumann, 731 So.2d 746, 747 (Fla. 4th DCA 1999).

A.

"It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). This prohibition, which goes back to the time of Blackstone, "is fundamental to an adversary system of justice." Id. at 172, 95 S.Ct. 896. Thus, a criminal prosecution may not proceed against a defendant who has been found incompetent. See McCray v. State, 71 So.3d 848, 862 (Fla. 2011) ("It is well-settled that a criminal prosecution may not move forward at any material stage of a criminal proceeding against a defendant who is incompetent to proceed." (quoting Caraballo v. State, 39 So.3d 1234, 1252 (Fla. 2010) ) ); Hayes v. State, 343 So.2d 672, 672 (Fla. 2d DCA 1977) ("The common-law rule which has long been recognized in Florida is that 'if at any time while [c]riminal proceedings are pending against a person accused of crime, whether before or during or after the trial, the trial court ... has facts brought to its attention which raise a doubt of the sanity of the Defendant, the question should be settled before further steps are taken.' " (second alteration in original) (quoting Brown v. State, 245 So.2d 68, 70 (Fla. 1971) ) ); see also Fla. R. Crim. P. 3.210(a) ("A person accused of an offense ... who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent."). Florida statutes now codify the substantive inquiries that underlie a competency determination. See generally § 916.12.

Florida statutes also provide a mechanism through which an incompetent defendant may be committed and provided treatment for the purpose of restoring his or her competency. See § 916.13. That commitment procedure is subject to an important limitation, as we explained in Department of Children & Family Services v. Barnett, 124 So.3d 430, 432-33 (Fla. 2d DCA 2013) :

[T]he court may commit a defendant only if that defendant "meets the criteria for involuntary commitment to the [D]epartment [of Children and Families] under the provisions of this chapter." § 916.13(2). Those criteria include that there be "a substantial probability that the mental illness causing the defendant's incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future." § 916.13(1)(c).... A court that commits a defendant in violation of these statutory requirements improperly encroaches on the legislature's authority to prescribe the limits of an agency's obligations and on an agency's obligation to expend its appropriated funds in accordance with the laws governing that agency. Moreover, doing so violates the rules of procedure promulgated by the supreme court, which provide that a court may commit a defendant for treatment only if "the defendant meets the criteria for commitment as set forth by statute." Fla. R. Crim. P. 3.212(c)(3)(A).

(Emphasis and citations omitted.)

As an alternative to residential commitment, section 916.17 authorizes a form of "conditional release," under the continuing supervision of the trial court, in which the incompetent defendant may receive treatment outside the confines of a section 916.13 residential commitment-but, here as well, only if the incompetent defendant would otherwise meet the criteria for commitment, which includes the "substantial probability" that the defendant "will regain competency to proceed in the reasonably foreseeable future." § 916.13(1)(c) ; see also Dep't of Children & Families v. Carmona, 159 So.3d 165, 167 (Fla. 2d DCA 2015) ; Dep't of Children & Families v. C.Z., 201 So.3d 78, 83 (Fla. 3d DCA 2015). If, after residential commitment or conditional release, the defendant is found ineligible to remain in the DCF's custody because there is no reasonable prospect that the defendant's competency can be restored in the foreseeable future, then the question the circuit judge raised during Mr. Schofield's hearing-what should be done with the defendant-necessarily arises.

B.

The United States Supreme Court answered that question in Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). In Jackson, a criminal defendant who was deaf, mute, and operated at the "mental level of a pre-school child" was found incompetent to proceed in his prosecution for robbery. Id. at 717, 92 S.Ct. 1845. Although the examining experts opined that the defendant was almost assuredly incapable of ever being able to assist in his defense, the trial court committed him indefinitely to a state hospital for treatment. Id. at 719, 92 S.Ct. 1845. In reversing the Indiana Supreme Court's affirmance of that order, the Jackson Court held

that a person charged by a [s]tate with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.

Id. at 738, 92 S.Ct. 1845. "If," the Supreme Court continued, "it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. " Id. (emphasis added).

Florida's district courts of appeal, including ours, have repeated this instruction to our state's trial courts. For example, in Mosher, 876 So.2d at 1232, the First District granted a petition for certiorari challenging the continued detention of a defendant accused of aggravated battery who had been found incompetent to proceed due to her schizophrenia. The trial court in Mosher had refused to release the defendant from involuntary commitment in spite of the fact that she did not meet the criteria for commitment under section 916.13(1) because it was "extremely unlikely" she could have her competency restored in the foreseeable future. Id. at 1231. After quoting the language of the Jackson opinion referenced above, the First District concluded: "Therefore, pursuant to Jackson, the State must either institute civil commitment proceedings or release her." Id. at 1232 (footnote omitted).

Our court, in turn, quoted Mosher in Oren v. Judd, 940 So.2d 1271, 1273-74 (Fla. 2d DCA 2006) :

In the present case, the circuit court did not find that there was a substantial probability that Oren's mental deficiencies would respond to treatment and that he would regain competency to proceed in the near future. Indeed, there was no evidence-let alone clear and convincing evidence-presented at the competency hearing establishing a probability that Oren would regain competency. To the contrary, it was established that Oren would never regain competency. Clearly, then, Oren's involuntary commitment was not authorized by section 916.13(1).
....
The [ Mosher ] court noted that at the hearing on Mosher's motion it was determined that there was no substantial probability that she would regain competency to proceed in the reasonably foreseeable future. Therefore, she no longer met the criteria for involuntary commitment under section 916.13(1)(c). For that reason, the court held, the State must institute civil commitment proceedings or Mosher must be released. The facts in the present case compel the same result.

See also Bronson v. State, 89 So.3d 1089, 1090 (Fla. 5th DCA 2012) ("According to the medical evidence, there is little chance that Petitioner will be restored to competency due to his cognitive deficits resulting from his stroke; therefore, he must be civilly committed or released from custody." (citing Roddenberry v. State, 898 So.2d 1070, 1073 (Fla. 5th DCA 2005) ; Oren, 940 So.2d 1271 ; Mosher, 876 So.2d at 1230 ) ); Dep't of Children & Families v. Gilliland, 947 So.2d 1262, 1263 (Fla. 5th DCA 2007) (quashing trial court's order of continued commitment where the petitioner suffered from dementia and there was little or no probability that she would become competent in the future: "As the court explained in Oren, the State will have to institute civil commitment proceedings or Gilliland will have to be released").

We read the instruction in Jackson, repeated numerous times in Florida's jurisprudence, as clear and unequivocal. If an incompetent defendant cannot be restored to competency in the reasonably foreseeable future, the State can either institute a civil commitment proceeding or it can release the defendant. It is an either-or proposition. There is no third alternative that can be derived from Jackson on this point because the Court's direction to "release the defendant" does not brook anything besides an unconditional release.

C.

Having said that, we must acknowledge some confusion may have arisen in recent years. The source of which appears to be a procedural rule that does not account for Jackson's holding and three published opinions' citations to that rule. In Graham v. Jenne, 837 So.2d 554, 559 (Fla. 4th DCA 2003), the Fourth District granted an incompetent, nonrestorable defendant's petition for writ of habeas corpus but then, at the conclusion of the opinion, offered the following suggestion (in what appears to be dicta):

Graham is incompetent to proceed to trial because he is a deaf mute and his sign language skills do not include legal terms required for him to either enter a plea or proceed to trial. He does not meet the requirements of Chapter 916 for involuntary commitment to DCF. However, Florida Rule of Criminal Procedure 3.212 provides other options.... Rule 3.212(d) allows a court to order appropriate release conditions for up to a year, including outpatient treatment at an appropriate local facility and reporting for further evaluation, if a defendant is not mentally competent but does not meet the criteria for commitment.

This is the first instance we have found in Florida law where rule 3.212(d) is mentioned as a viable means for a circuit court to retain jurisdiction over and order "evaluation" (for whatever unidentified benchmark) of a nonrestorable, incompetent defendant. Neither the rule, the rule's commentary, nor the Jenne opinion mention the Supreme Court's holding in Jackson or any Florida court opinion applying Jackson.

Six years later, in Abreu-Gutierrez v. James, 1 So.3d 262, 265 (Fla. 4th DCA 2009), a criminal defendant who had spent three years vacillating between competency and incompetency (in a state hospital and jail) filed a pro se petition for writ of habeas corpus with the circuit court challenging his continued commitment. Faced with conflicting evidence about the petitioner's competency and overall mental health, the Fourth District observed that because the lower court did not find by clear and convincing evidence that a substantial probability existed that he could be restored to competency in the foreseeable future, Abreu's commitment "may be unlawful." Id. at 266. But, the Abreu court concluded, the proper method to challenge a nonfinal order of commitment would be through a certiorari petition, and so it affirmed the denial of his habeas petition. Id. at 266-67. The court in Abreu then instructed the trial court to hold another hearing within thirty days from the date of the appeal's mandate "to consider Abreu's competency and his qualification for continued commitment." Id. at 267. Abreu concluded with these final instructions:

If Abreu's condition cannot be treated and he cannot be restored to competency, the state must initiate civil commitment proceedings pursuant to the Baker Act, or other pertinent statutes, or Abreu must be released. See Mosher, 876 So.2d at 1232. If the trial court orders release, it should be based on appropriate conditions which should include monitoring and outpatient treatment . See Fla. R. Crim. P. 3.212(d).

Id. (emphasis added). Here as well, an unelaborated citation to rule 3.212(d) appears to be the sole basis for the suggestion to the circuit court that it could impose court-monitored conditions on the defendant's release if the defendant could not be restored to competency.

Later that same year, in Department of Children & Family Services v. Amaya, 10 So.3d 152, 157 (Fla. 4th DCA 2009), the court reframed the suggestion in Abreu into a positive statement of the law: "The proper course when an incompetent defendant does not meet the criteria for commitment, and cannot be restored to competency, is for the State to initiate civil commitment proceedings under the Baker Act or for the court to release the defendant 'on appropriate conditions' as provided in Rule 3.212(d)." (citing Abreu, 1 So.3d at 267 ; Gilliland, 947 So.2d at 1263 ; Oren, 940 So.2d at 1274 ; Mosher, 876 So.2d at 1232 ).

Since then, the implicit reformulation of Jackson's holding has been carried along in Florida law, intermittently and in differing variations, when an incompetent defendant who is ineligible for commitment under section 916.13 challenges his or her continued commitment. Compare Martire v. Gualtieri, 244 So.3d 233, 233 (Fla. 2d DCA 2018) ("Should the trial court find that there is not a substantial probability that the petitioner will attain competency in the foreseeable future, the trial court shall release the petitioner under appropriate conditions pursuant to Florida Rule of Criminal Procedure 3.212(d) if the State does not initiate involuntary civil commitment proceedings."); State v. Spuhler, 243 So.3d 1029, 1031-32 (Fla. 2d DCA 2018) (denying State's certiorari petition to require imposition of conditional release and holding that "[i]t is within the trial court's discretion" to impose conditions under rule 3.212(d) ); McCray v. State, 230 So.3d 495, 497 (Fla. 2d DCA 2017) ("In Mr. McCray's situation, '[t]he proper course when an incompetent defendant does not meet the criteria for commitment, and cannot be restored to competency, is for the State to initiate civil commitment proceedings under the Baker Act or for the court to release the defendant on appropriate conditions as provided in Rule 3.212(d).' " (quoting Amaya, 10 So.3d at 157 ) ); and Barnett, 124 So.3d at 433 ("If the court orders release, it should consider whether appropriate conditions may again be lawfully imposed under rule 3.212(d).") with Williams v. State, 256 So.3d 954, 957 (Fla. 1st DCA 2018) ("At a hearing, the State's evidence demonstrated that [Petitioner's] disorder would never improve and he would never attain competency. It was error to find a substantial probability that [Petitioner] would attain competency in the reasonably foreseeable future based on a report making no such determination, particularly in the face of direct evidence to the contrary. [Petitioner] must be civilly committed or released, and his charges dismissed."); C.Z., 201 So.3d at 83-84 (explaining that "[w]hen a defendant is found non-restorable to competency and, therefore, does not meet the criteria for commitment, the next step is either to initiate civil commitment under the 'Baker Act' or to release the defendant" and remarking that " Florida Rule of Criminal Procedure 3.212(d)purports to create a short, safe harbor-like transition period before release, but only 'for a period not to exceed 1 year' " (emphasis added) ); and Bronson, 89 So.3d at 1090 (holding that incompetent defendant whose competency cannot be restored "must be civilly committed or released from custody").

For seven reasons, we do not believe any of these recent cases that have modified Jackson's clear instruction are controlling. First, as we discussed earlier, Jackson's holding on what the State may do when a defendant is found incompetent and unlikely to become competent in the reasonably foreseeable future provided two, and only two, options. The insertion of a third alternative, a court-monitored conditional release, conflicts with an express holding of the U.S. Supreme Court on a point of constitutional interpretation and, therefore, cannot be considered authoritative on that point. See Armstrong v. Exceptional Child Ctr., Inc., --- U.S. ----, 135 S.Ct. 1378, 1384, 191 L.Ed.2d 471 (2015) (examining scope of the Supremacy Clause and observing "[f]or once a case or controversy properly comes before a court, judges are bound by federal law"); see also Marshall v. Crosby, 911 So.2d 1129, 1135 (Fla. 2005) ("[T]his Court relies on the United States Supreme Court's admonition that lower courts should 'follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.' " (quoting Bottoson v. Moore, 833 So.2d 693, 695 (Fla. 2002) ) ). Second, any subsequent panel decision issued from our court that conflicts with our court's prior holding in Oren, 940 So.2d at 1274 (which expressed Jackson's formulation), cannot be considered binding. See Wood v. Fraser, 677 So.2d 15, 18 (Fla. 2d DCA 1996) ("[A]bsent an en banc opinion expressly receding from a point of law announced in previous opinions of this court, a trial court should not rely on the expressions of a three-judge panel as a basis to conclude that a previous opinion of another three-judge panel no longer carries the force of law."). Third, issues of constitutionality aside, there is no statutory authority to impose release conditions over a nonrestorable, incompetent defendant who is not eligible for commitment under section 916.13. Cf. Carmona, 159 So.3d at 167 ("[T]he conditional release provisions of the statute and the rules implementing the statute indicate that conditional release under section 916.17 is appropriate only when a defendant meets the criteria for commitment to [DCF]." (emphasis added) (quoting Amaya, 10 So.3d at 156 ) ). Fourth, therefore, rule 3.212(d) could not be applied in these cases because, as we pointed out in Barnett, 124 So.3d at 433, "a court may commit a defendant for treatment only if 'the defendant meets the criteria for commitment as set forth by statute.' " (quoting Fla. R. Crim. P. 3.212(c)(3)(A) ). Fifth, if indeed rule 3.212(d) purports to confer the sweeping power upon trial courts to impose conditions on a nonrestorable, incompetent defendant's right to be released from custody, it would seem, as Mr. Schofield argues, to constitute a violation of the separation of powers between the legislative and judicial branches. See Boyd v. Becker, 627 So.2d 481, 484 (Fla. 1993) ("While the Florida Constitution grants this Court exclusive rule-making authority, this power is limited to rules governing procedural matters and does not extend to substantive rights." (citing art. V, § 2(a), Fla. Const.; Timmons v. Combs, 608 So.2d 1 (Fla. 1992) ; Benyard v. Wainwright, 322 So.2d 473 (Fla. 1975) ) ); Hines v. State, 931 So.2d 148, 150 (Fla. 1st DCA 2006) ("When a statute confers a substantive right, a conflicting procedural rule is invalid as a violation of separation of powers under article II, section 3 of the Florida Constitution because a rule of procedure cannot enact substantive law."). And whatever may be said of the vagaries between substantive and procedural law, state-sanctioned restraint on physical liberty must surely derive from substantive law. Cf. Adams v. Wright, 403 So.2d 391, 394 (Fla. 1981) ("[S]ubstantive law includes those rules and principles which fix and declare the primary rights of individuals as respects their persons and their property." (quoting In re Florida Rules of Criminal Procedure, 272 So.2d 65, 66 (Fla. 1972) (Adkins, J., concurring) ) ); State v. Garcia, 229 So.2d 236, 238 (Fla. 1969) ("Substantive rights are those existing for their own sake and constituting the normal order of society, i.e., the rights of life, liberty, property[,] and reputation." (quoting In reGogabashvele's Estate, 195 Cal.App.2d 503, 16 Cal. Rptr. 77, 90 (1961) ) ). Sixth, the panel decisions that have authorized conditional release in these cases have never expressed a ratio decidendi for the anomaly it creates in settled jurisprudence-other than a rote citation to rule 3.212(d) or a prior opinion's citation to that rule. And finally, seventh, as a practical matter, we must note that the enforcement of release conditions in these cases is, for all intents and purposes, illusory. If a nonrestorable, incompetent defendant violates the terms of his or her conditional release, a trial court could neither lawfully punish the incompetent defendant for the violation, see McCray, 71 So.3d at 862 ("[A] criminal prosecution may not move forward at any material stage of a criminal proceeding against a defendant who is incompetent to proceed." (quoting Caraballo, 39 So.3d at 1252 ) ), nor lawfully have the defendant committed to DCF under section 916.17, see C.Z., 201 So.3d at 82-83 ("In our view, this subsection [of 916.17] does not and is not intended to create a separate statutory foundation for use by a trial court to order the Department [of Children and Families] to house and treat a mentally ill person who has been found non-restorable to competency to stand trial.... The [l]egislature has not established a mental health program or service for individuals in C.Z.'s situation."). Which is to say, a trial court could never meaningfully enforce the release conditions it imposes. Cf. Easter v. City of Orlando, 249 So.3d 723, 731 (Fla. 5th DCA 2018) (quoting circuit judge's remarks that "the law surely does not require ... pointless" or "fruitless action"). This trial court's attempt to navigate a better course for enforcing its release conditions over Mr. Schofield, though perhaps understandable, was no less unlawful.

III.

Consistent with Jackson, we once again hold that when a criminal defendant has been found incompetent to proceed and is not eligible for commitment pursuant to section 916.13 because there is no substantial probability that the defendant will regain competency in the reasonably foreseeable future, pursuant to Jackson, the State must either institute civil commitment proceedings or release that defendant. See Oren, 940 So.2d at 1273-74 (citing Mosher, 876 So. 2d at 1232 ). Once the trial court determined that Mr. Schofield was incompetent and could not be restored to competency in the foreseeable future it had two choices: it could either initiate a Baker Act civil commitment proceeding, or it could release him-period. There was no lawful basis for the trial court to impose conditions on Mr. Schofield's release or to jail him for the violation of any of those conditions. Therefore, the petitioner is entitled to habeas relief.

Having so held, we will conclude with the observation we made in Barnett, which bears repeating here:

While we certainly sympathize with the trial court's frustrations and unwillingness to contribute to potential chaos, we note that the rule of law simply does not permit a trial court to fashion its own remedy in derogation of statutory limitations, and good intentions cannot expand the trial court's power in this regard. It is up to the legislature-not the trial court or this court-to close any gaps that may exist in the statutory scheme and to address the inadequacies of the existing law when applied to facts such as these.

124 So.3d at 433.

Petition granted.

KELLY and BADALAMENTI, JJ., Concur.

      The protected individual under the permanent injunction was Mr. Schofield's mother, who, the officer determined, lived 129 feet from where Mr. Schofield was loitering.

      This part of the court's order appears to be based upon section 916.145(1), Florida Statutes (2017): "The charges against a defendant adjudicated incompetent to proceed due to mental illness shall be dismissed without prejudice to the [S]tate if the defendant remains incompetent to proceed for 5 continuous, uninterrupted years after such determination ...."

      The circuit court found that the commission of a new crime while released constituted a violation of a condition of the May 31 order. Technically, the court's order did not include a condition that prohibited committing or being arrested for allegedly committing criminal offenses. The point is technical because the capias warrant that preceded Mr. Schofield's detention was based on his failure to appear at a noticed status hearing, which was a condition of the May 31 order. Cf. Anglin v. Mayo, 88 So.2d 918, 919-20 (Fla. 1956) ("If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint.").

      Challenges to civil commitment orders are frequently considered through certiorari. See In re Commitment of Reilly, 970 So.2d 453, 455 (Fla. 2d DCA 2007) ; Oren v. Judd, 940 So.2d 1271, 1272 (Fla. 2d DCA 2006) (citing Patton v. State, 712 So.2d 1206 (Fla. 1st DCA 1998) ); Dep't of Children & Families v. Clem, 903 So.2d 1011, 1012 (Fla. 5th DCA 2005) ; M.H. v. State, 901 So.2d 197, 198 (Fla. 4th DCA 2005) ; Mosher v. State, 876 So.2d at 1231 ; accord Horton v. Judd, 80 So.3d 439, 439 n.1 (Fla. 2d DCA 2012) (noting that typically commitment orders are reviewed in certiorari, but "[a] challenge to an order of the trial court improperly committing a defendant for the purpose of restoring his competency may, however, be raised in a habeas proceeding" (citing Graham v. Jenne, 837 So.2d 554, 555 (Fla. 4th DCA 2003) ) ). We elect to proceed in habeas here because Mr. Schofield's petition emanates from his incarceration (as opposed to civil commitment) for allegedly violating a condition of release under rule 3.212(d). See Bronson v. State, 89 So.3d 1089, 1089 (Fla. 5th DCA 2012) (granting habeas relief to release petitioner from county jail where he had been found incompetent to proceed and there was "little or no probability that his competency will be restored in the future"). Because our consideration in habeas fully resolves the issues presented and grants all the relief Mr. Schofield has requested, we need not consider his alternative petition for certiorari and dismiss it as moot.

      Rule 3.212(d) provides, in pertinent part:
      If the court decides that a defendant is not mentally competent to proceed but does not meet the criteria for commitment, the defendant may be released on appropriate release conditions. The court may order that the defendant receive outpatient treatment at an appropriate local facility and that the defendant report for further evaluation at specified times during the release period as conditions of release. A report shall be filed with the court after each evaluation by the persons appointed by the court to make such evaluations, with copies to all parties.

      The string citation to the latter three cases is curious since the only cited opinion that actually included the internal quotation or citation to rule 3.212(d) was Abreu. As discussed previously, Gilliland, Oren, and Mosher all held that the State's options were to either initiate a civil commitment proceeding or "release the defendant," with no mention of any court-ordered conditions.

      That does seem to have been the intent of the rule's drafters. In a committee note to the prior version of rule 3.212(d), it is stated: "This rule provides for the disposition of the defendant who falls under the third of the alternatives listed above, that he is incompetent to stand trial but does not meet the provisions for involuntary hospitalization. It is meant to provide as great a flexibility as possible for the trial judge in handling such defendant." See Committee note to Fla. R. Crim. P. 3.212, 1980 Adoption.

      Cf. Martin v. State, 43 Fla. L. Weekly D1016, D1017, --- So.3d ----, ----, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018) ("Discerning the precise contours between these distinctions [between substantive and procedural law] can occasionally pose a challenge").