author: ALTENBERND, Judge.

text:
    Allyson PARHAM, as Personal Representative of the Estate of Robert L. Gardner, Deceased, Appellant, v. FLORIDA HEALTH SCIENCES CENTER, INC., d/b/a Tampa General Hospital, Appellee.
    No. 2D08-5054.
    District Court of Appeal of Florida, Second District.
    March 31, 2010.

      Celene Humphries of Brannock & Hum-phries, Tampa; Harold Sebring, III, of Sebring Law, Tampa; and Michael Tren-talange of Trentalange and Kelley, P.A., for Appellant.
    Mara B. Levy and Derek M. Daniels of McCumber, Daniels, Buntz, Hartig & Puig, P.A., Tampa, for Appellee.
    Lincoln J. Connolly of Rossman, Baum-berger, Reboso, Spier & Connolly, P.A., Miami, for Amicus Curiae Florida Justice Association.
    Andrew S. Bolin of Macfarlane Ferguson & McMullen, Tampa; and Caryn L. Bellus of Kubicki Draper, P.A., Miami, for Amici Curiae Florida Hospital Association, Florida Defense Lawyer’s Association, and The Florida Medical Association.
   ALTENBERND, Judge.

Allyson Parham, as personal representative of the Estate of Robert L. Gardner (the Personal Representative), appeals a final judgment in a wrongful death, medical malpractice action filed against Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital (TGH). This case involves the death of a premature newborn who was transferred to TGH from another hospital because TGH had a Level III neonatal intensive care unit. The primary dispute in the case centered on the fact that TGH did not have a pediatric surgeon on staff to handle emergencies in the neonatal unit at the time of these events.

In addition to a standard claim of medical negligence, the Personal Representative asserted a theory of fraud in the inducement based on alleged misrepresentations made by the neonatologist on duty at TGH to the transferring physician at the other hospital. The trial court entered a directed verdict on this theory at the close of the plaintiffs case. The jury later returned a verdict in favor of the parents, as survivors, on the medical negligence claim in the amount of $12,000,000. As a result of posttrial motions, the trial court reduced the award to the mother from $8,000,000 to $350,000. This reduction was based on the limitation or cap of liability for non-economic damages contained in section 766.209(4), Florida Statutes (2003). The trial court also eliminated entirely the award of $4,000,000 to the father.

On appeal, the Personal Representative raises seven issues, which we address as three issues. First, the Personal Representative challenges the limitation of liability imposed on the award to the mother. Given established precedent, we affirm that award. See Univ. of Miami v. Echarte, 618 So.2d 189 (Fla.1993). However, because the Personal Representative argues that circumstances have changed substantially since the supreme court upheld this statute in 1993, at the conclusion of this opinion we certify the continued constitutionality of this limitation to the supreme court.

Second, the Personal Representative challenges the trial court’s decision to deny the father any compensation. We conclude that the trial court erred in this regard. The fact that the father did not choose to testify at trial did not eliminate the other evidence of his involvement with the child and his entitlement to damages. Although the jury awarded $4,000,000 to the father, on remand, we mandate that judgment be entered in favor of the father in the amount of $350,000 pursuant to section 766.209(4).

Finally, we affirm the trial court’s decision to direct a verdict on the claim of fraud in the inducement. Assuming that such a claim is legally recognized in this context, we conclude that the evidence did not establish a claim that could be submitted to the jury. We note that the Personal Representative assumes that this theory would have been exempt from the limitation on liability under section 766.209(4). In light of our ruling, we do not reach that issue.

I. The Facts

Allyson Parham conceived a child at the beginning of 2003. Although she was not married at the time, the undisputed evidence establishes that Robert Gardner was the father of this child. The child was due in early October.

Ms. Parham developed severe preec-lampsia. As a result, she delivered the child by caesarian section at Winter Haven Hospital on July 26, 2003. The child was named Robert L. Gardner for his father.

The child was delivered about eight weeks early and weighed only three pounds and five ounces. He was initially treated at Winter Haven Hospital’s Level II neonatal intensive care unit by a neona-tologist, Dr. Kong. She placed the child on a breathing machine to assist his underdeveloped lungs. The child responded well to the treatment and was removed from the machine on July 31. He continued to progress at the hospital. The records reflect that both parents visited the child in the hospital on a regular basis.

On August 14, the child began to demonstrate a distended abdomen, which can be a symptom of necrotizing enterocolitis, a gastrointestinal condition that, although rare, is more common among premature children. This condition is an infection in the bowels. The infection can eventually kill intestinal tissue, which in turn can result in a blood-borne infection. Such a blood-borne infection can quickly overwhelm a small child and can be fatal. If antibiotics are ineffective against this condition, apparently surgery is the only option available to remove the dead intestinal tissue that is causing the infection.

X-rays taken on August 14 suggested that the infection might already be advancing rapidly. Dr. Kong concluded that the child needed a pediatric surgical consultation because she was not qualified to determine whether surgery was necessary. Because Winter Haven Hospital is a Level II facility, it did not have an available pediatric surgeon on staff, and Dr. Kong began looking for a Level III facility that could provide surgical treatment.

Dr. Kong called TGH and talked to Dr. Monisha Saste, who is also a neonatologist. According to Dr. Kong, Dr. Saste explained to her that although TGH was a Level III facility, it did not have a pediatric surgeon on staff. She explained that TGH transferred such pediatric patients to St. Joseph’s Hospital when surgery was required and that such a transfer could occur in the case of this child. Dr. Kong did not recall Dr. Saste’s exact words, but she believed that Dr. Saste was assuring her that the child would receive a surgical consult if transferred to TGH. Accordingly, the child was transferred to TGH after Dr. Kong talked to the parents and obtained their consent for the child to be transferred.

The child was transported by helicopter to TGH, arriving in the early hours of August 15. The child did not immediately receive a surgical consult. In fact, the child never received a surgical consult. Dr. Saste continued to provide treatment similar to that provided by Dr. Kong. The parents spent the next three days at the adjacent Ronald McDonald House and visited the child often.

Initially, at TGH the child seemed stable and perhaps even to improve with the antibiotic treatment. Then his condition deteriorated rapidly. On August 16, the child’s care was taken over by Dr. Robert M. Nelson, who was the chief of pediatrics at TGH. Sometime later that day, Dr. Nelson concluded that there was a high probability that the child needed surgery. He testified that he contacted a surgeon at St. Joseph’s Hospital and that the surgeon, without conducting a consult, told him that, more likely than not, the child would die with or without surgical intervention. The child died at TGH without surgery at 3:30 a.m. on August 17 with his parents at his side. The surgeon whom Dr. Nelson claimed he called at St. Joseph’s Hospital had no recollection of such a telephone call and testified that she would not have determined whether the child needed surgery without first examining the child. The verdict in this case suggests that the jury may have concluded that Dr. Nelson had not made this telephone call.

The Personal Representative sued TGH and also sued Dr. Saste and Dr. Nelson individually. The case proceeded to trial on the Third Amended Complaint. The first count of that complaint alleged fraud in the inducement. It alleged that Dr. Saste, as an agent of TGH, knowingly and intentionally misrepresented to Dr. Kong that the child would receive a pediatric surgical consultation upon admission to TGH, that at the time of this misrepresentation Dr. Saste had no intention of obtaining this consultation, and that she made this false statement intending the parents to rely on this false statement to their detriment. As discussed later, the evidence did not support these strong accusations, and the trial court properly granted a directed verdict as to this count.

The second count was a more typical claim of medical negligence. Prior to trial, by joint stipulation, Dr. Saste and Dr. Nelson were dismissed from the lawsuit as a result of a settlement. The case proceeded to trial against TGH with the Personal Representative seeking to make the hospital liable for any medical negligence on the part of the two physicians. As explained earlier, the jury returned a verdict on this claim in favor of the Personal Representative, awarding the parents sizable amounts as survivors. Although many issues were litigated at trial, including whether the doctors who were employees of the University of South Florida were actual or apparent agents of TGH, whether the doctors committed medical negligence, and whether the child’s death was the result of that negligence, these issues are not matters in controversy in this appeal and will not be discussed in any detail.

Following the jury’s verdict, TGH filed five motions. First, it filed a motion for remittitur, seeking to enforce the limitation of liability in section 766.209(4). Second, it filed a motion for remittitur under section 768.74, Florida Statutes (2003). Third, it filed a motion for setoff due to the settlement paid on behalf of Dr. Saste and Dr. Nelson. Fourth, it sought a judgment in accordance with its prior motion for directed verdict on several issues, including an argument that the father had not established testimony to support his claim for pain and suffering. Finally, TGH filed a motion for new trial. Both parties filed extensive memoranda as to these issues.

All of TGH’s motions were denied except as follows: The trial court granted the motion to limit the mother’s damages to $350,000 pursuant to section 766.209(4). It granted both the motion for judgment in accordance with a prior motion for directed verdict as to the father’s claim for damages as a survivor and the motion for remittitur as to that claim, reducing the amount from $4,000,000 to $0. Thus, the trial court entered judgment in September 2008 in favor of the Personal Representative, but limited to the $350,000 awarded to the mother as survivor. The Personal Representative appealed this judgment.

II. Section 766.209(4) is Constitutional.

The Personal Representative, with support from an amicus, extensively argues that section 766.209(4) is unconstitutional. That statute in its entirety is attached to this opinion as Appendix A. In general, the statute provides for “effects” following the refusal of a party to submit a medical negligence claim governed by chapter 766 to voluntary binding arbitration when the other side wishes to arbitrate the claim. A refusal to arbitrate essentially limits a plaintiffs noneconomic damages to $350,000.

The Personal Representative recognizes that this statute was declared constitutional in Echarte, 618 So.2d at 198, where the primary issue was whether the statute denied access to courts under article I, section 22, of the Florida Constitution. She argues that the decision in Echarte should be reconsidered or is no longer correct for a number of reasons. We will not describe each of the Personal Representative’s arguments in detail, but several warrant discussion.

The Personal Representative makes an interesting argument. To understand this issue, it is critical to understand the interplay between section 766.209 and section 766.207. Section 766.207 establishes voluntary binding arbitration of medical negligence claims. At first glance, section 766.209 appears to create sanctions for the failure of a litigant to cooperate with the other party by engaging in binding arbitration. This is not actually its effect.

The damages awardable in a medical negligence arbitration proceeding under section 766.207 are even more restricted than the damages awardable under section 766.209. If the parties proceed to binding arbitration, noneconomic damages are capped at $250,000 and punitive damages are unavailable. See § 766.207(7)(b), (d). Thus, the primary benefit of voluntary arbitration is speed and efficiency. The outcome is reached quicker and cheaper. This would appear to be a valuable tool for the claimant with a small claim, but it places great limitations on a claimant who has or will endure extensive pain and suffering.

Thus, in reality, the cap in section 766.209 is not merely an “effect” of refusing arbitration; it is a cap on common law damages awarded in a trial by jury that is guaranteed in article I, section 22, of the Declaration of Rights of the Florida Constitution. It is a limitation that can be created by the defendant’s willingness to arbitrate for an even lower award whenever such arbitration is in the best self-interest of the defendant. This cap is allegedly justified under the guidelines established in Kluger v. White, 281 So.2d 1 (Fla.1973), to address statutes that limit access to courts. Those guidelines require the legislature to create a “reasonable alternative” to the common law right and to justify the abolishment of a common law right without the creation of a reasonable alternative with an express finding of an “overpowering public necessity.” Id. at 4. In the case of section 766.209, the legislature justified the limitation it placed on the common law by creating, as a “reasonable alternative” to jury trial, the binding arbitration in 766.207, but this “reasonable alternative” provides an even more limited remedy than the cap in section 766.209(4).

Moreover, the overall collection of statutes that limited access to the courts in 1988 in medical malpractice cases was supported by legislative findings explaining that a then-existing crisis in the medical liability insurance market created an “overpowering public necessity,” as required by Kluger. The Personal Representative maintains that, when such legislative findings are essential to overcome the public’s right of access to courts, they should not last in perpetuity, and that the legislature should have some obligation to reassess conditions occasionally to confirm the continuing existence of an overpowering public necessity. The Personal Representative believes it could establish that the crisis no longer exists if a forum existed for that presentation.

Finally, the $350,000 limitation in this statute and the $250,000 limitation in section 766.207(7)(b) were both established in 1988 and have never been increased. See Echarte, 618 So.2d at 191-92 nn. 11-13. Inflation alone has substantially increased the limitation prescribed by this statute and has substantially reduced the “reasonable alternative” essential to upholding the statute against a charge that it denies access to courts.

Thus, although we follow Echarte, we certify this constitutional question as a question of great public importance at the conclusion of this opinion.

III. The Father’s Entitlement to Damages

The trial court’s orders that override the jury’s award of $4,000,000 in this case are somewhat unusual. The court granted both a postverdict directed verdict and a remittitur. The remittitur did not reduce the award; it eliminated the award. The unusual combination may have been the result of a disagreement over whether TGH had preserved the right to a directed verdict when its initial motion for directed verdict was not made at the end of the plaintiffs case. Our ruling in this case allows us to avoid discussing the procedural questions relating to the timing of the motion for directed verdict.

There is no dispute that Robert Gardner did not testify. There also was no before- and-after witness to explain how the death of his namesake son affected him. This couple was not married at the time of the child’s death and the circumstances of their relationship are not well developed in the record, although Ms. Parham was described during trial as Mr. Gardner’s fian-cée.

On the other hand, it was undisputed that the medical records established that Mr. Gardner visited the child regularly at both Winter Haven Hospital and TGH. He did not abandon this child. He was at the hospital when his son died. He attended the trial and was introduced to the jury.

There is little question that a jury is better informed about a parent’s sorrow when the parent and other witnesses take the stand to describe the emotional loss. The issue here, however, is whether such testimony is essential to establish a prima facie claim to some award by the jury. The trial court in this case held that a father who watched his namesake son die after monitoring his care in the hospital for several weeks was not entitled to a dollar.

We conclude that a prima facie claim for survivor benefits under the wrongful death statute does not necessitate a parent’s taking the stand to describe the sorrow. The evidence in this case that Mr. Gardner was the father and that he had taken an active interest in the life of this child during his brief stay on earth was sufficient to withstand a motion for directed verdict. The trial court, thus, erred in granting that motion.

As to the motions for remittitur, consistent with our ruling in section II of this opinion, we must hold that the award to the father cannot exceed $350,000. The closer question is whether the trial court should now be given renewed discretion to award an amount less than $350,000 under section 768.74. Although an award of zero is inappropriate in this case, should the trial judge be given the option on remand to reconsider .this motion and award a larger amount, for example, $250,000? We conclude that the answer is no.

First, it is not often that we give trial courts a second bite at the apple when an error was made on the first disposition of a motion. Second, this is not a case in which the trial court was relying on testimony, including its tenor and cadence, to justify a different award; we have nearly the same vantage point as the trial judge on this issue. Third, pain and suffering is inherently a difficult element to measure, and it is a difficult element to reassess under the guidelines established in section 768.74(5). If the jury in this case had reached a verdict of $350,000, rather than an amount more than ten times higher, we would be hard-pressed to state that they were awarding damages in a range that obviously exceeded the maximum limit of a reasonable range in which they were free to operate. See generally Bould v. Touchette, 349 So.2d 1181, 1184-85 (Fla.1977). In opening statement, the Personal Representative suggested a verdict in the range of $15,000,000 would be appropriate for Mr. Gardner. The defense attorneys never suggested any range in which the jury should operate.

Finally, the jury in this case heard extensive evidence from many witnesses, and it is obvious that the jury was convinced that the death of this infant was avoidable if TGH had simply obtained the pediatric surgical consult that Dr. Kong thought was necessary when she transferred the child to TGH. The jury was free to conclude that the parents’ grief was in some part measured by the knowledge that their child had died for no reason, much less a good reason. Such decisions by juries are entitled to a level of credence and respect by the judiciary. We are not convinced that a remittitur of this $4,000,000 award to an amount below $350,000 would fulfill the Legislature’s express recognition in section 768.74(6) that “the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified with caution and discretion.”

Accordingly, on remand, we require the trial court to enter judgment in favor of Mr. Gardner in the amount of $350,000, with appropriate interest.

IV. The Personal Representative Did Not Prove Fraud.

We affirm the trial court’s decision to grant a directed verdict at the close of the Personal Representative’s case on the claim for fraud in the inducement. In so doing, we emphasize that we are not holding that such a claim was appropriate in this context or that such a claim, if appropriate, would be a method to obtain a judgment in excess of the cap established in section 766.209(4). We briefly discuss these concerns but ultimately conclude that the Personal Representative did not establish evidence of a false statement concerning a material fact.

Medical malpractice, as a legal theory, has evolved over several centuries. See generally Theodore Silver, One Hundred Years of Harmful Error: The Historical Jurisprudence of Medical Malpractice, 1992 Wis. L.Rev. 1193 (1992). The relationship that establishes a duty owing to the patient is normally contractual or quasi-contractual, but every law student learns that contract law does not provide an adequate mechanism to measure damages for a physician’s malpractice resulting in a physical injury or death. See Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (1929) (permitting “benefit of the bargain” damages for flawed surgery). Likewise, the concept of informed consent was initially created as a defense against claims that the doctor’s malpractice had been an impermissible touching and, thus, a battery. See Stackhouse v. Emerson, 611 So.2d 1365, 1367 n. 2 (Fla. 5th DCA 1993); Sistrunk v. Hoshall, 530 So.2d 935 (Fla. 1st DCA 1988); Vomacka v. Hervey, 382 So.2d 41 (Fla. 2d DCA 1979); Brown v. Wood, 202 So.2d 125 (Fla. 2d DCA 1967). Over time, the law evolved so that our standard jury instructions now explain to the jury that the physician can commit professional negligence if he or she fails to obtain informed consent under circumstances requiring consent. See Fla. Std. Jury Instr. (Civil) 4.2(b). The standards of care applicable in most medical negligence cases are now stated in a statute. See § 766.102. The field is heavily regulated both by case law and statutory law.

Having learned from experience that these cases are better resolved as matters of negligence law and not as contractual disputes or intentional torts, we are reluctant to recognize a claim of fraud in the inducement under the facts of this case. We are not holding that such tort could never be alleged, but the record in this case convinces us that such a tort should be, at least, a very rare occurrence.

The elements for actionable fraud are (1) a false statement concerning a material fact; (2) knowledge by the person making the statement that the representation is false; (3) the intent by the person making the statement that the representation will induce another to act on it; and (4) reliance on the representation to the injury of the other party.

Lance v. Wade, 457 So.2d 1008, 1011 (Fla.1984). “In summary, there must be an intentional material misrepresentation upon which the other party relies to his detriment.” Id.; see also Fla. Std. Jury Instr. (Civil) 8.1. In the context of this case, in order to prove the final element of fraud as described in the jury instructions, i.e. loss, injury or damage, it would appear that the Personal Representative would need to prove that TGH through its agents committed malpractice.

There would be no legal injury sustained as a result of the alleged misrepresentation if the medical treatment had been acceptable. Thus, if the child had successfully responded to the medical treatment as anticipated by Dr. Saste, there would be no damages in fraud even if Dr. Saste had expressly made a representation of fact that she would obtain an immediate surgical consult and then had not obtained it. If one element of this intentional tort can be proven only by establishing everything needed to prove medical malpractice under a negligence theory, we are not entirely convinced there is a justification for creating a claim for fraud in the inducement. If the only purpose of such a claim is to obtain damages in excess of the cap established in section 766.209 or to obtain punitive damages under procedures different than those normally used in a medical negligence case, these purposes seem at odds with the public policies announced by the legislature, and we question whether these purposes would warrant the recognition of a claim for fraud in the inducement in this context.

Having expressed these concerns, our holding is much narrower. The Personal Representative needed to establish a material misrepresentation of fact by an agent of TGH. In this case, the critical conversation is the telephone call between Dr. Saste and Dr. Kong immediately before the transfer of the child from one hospital to the other. TGH has a large Level III neonatal intensive care unit, and the neo-natologist in charge of that unit undoubtedly receives many calls to transfer children from other facilities. Dr. Saste did not deny that such a telephone call had occurred, but she had no recollection of its content:

Thus, if a material misrepresentation of fact were to be established in this case, the evidence needed to come from Dr. Kong. We have carefully reviewed Dr. Kong’s testimony. There is no question that she would have obtained a surgical consult as soon as the child arrived at TGH if she had been the neonatologist at TGH. From her conversation with Dr. Saste, she “felt assured” that the child would have a surgical consult. However, she admitted that Dr. Saste told her that TGH did not have a pediatric surgeon on staff. Dr. Kong never testified that Dr. Saste promised or represented to her that she would bring in a pediatric surgeon from another hospital and that the child would be given such a consult if the child were transferred to TGH.

Dr. Saste testified that when the child was admitted, she examined the child and determined that continued medical management was in order and that a surgical consultation was not needed at that time in light of what she saw in her examination of the child. Throughout the duration of her shift on that first night, she believed the child was stable.

Given the entirety of the evidence in this case, the jury was free to determine that Dr. Saste’s treatment and the treatment of the staff at TGH fell below the appropriate standard of care on the medical negligence claim, but we agree with the trial court that the testimony did not establish prima facie evidence that Dr. Saste made a false statement concerning a material fact. Accordingly, the trial court correctly granted a directed verdict on the claim of fraud.

V. Conclusion

Accordingly, we affirm the judgment for $350,000 in favor of the mother as a survivor. We reverse the orders denying an award to the father and remand for entry of a judgment for $350,000 with appropriate interest. We affirm the judgment in all other respects and certify the following question of great public importance:

DOES THE $350,000 LIMITATION OR CAP ON LIABILITY FOR NONECO-NOMIC DAMAGES ESTABLISHED IN 1988 IN SECTION 766.209(4) REMAIN CONSTITUTIONAL IN 2009, EVEN THOUGH THE AMOUNT OF THIS CAP HAS NEVER BEEN ADJUSTED TO ACCOUNT FOR INFLATION AND THE LEGISLATURE HAS NEVER BEEN REQUIRED TO RECONFIRM THE CONTINUED EXISTENCE OF THE “OVERPOWERING PUBLIC NECESSITY” THAT JUSTIFIED LIMITING ACCESS TO THE COURTS IN 1988?

Affirmed in part, reversed in part, and remanded.

VILLANTI and LaROSE, JJ., Concur.

APPENDIX A

766.209. Effects of failure to offer or accept voluntary binding arbitration

(1) A proceeding for voluntary binding arbitration is an alternative to jury trial and shall not supersede the right of any party to a jury trial.

(2) If neither party requests or agrees to voluntary binding arbitration, the claim shall proceed to trial or to any available legal alternative such as offer of and demand for judgment under s. 768.79 or offer of settlement under s. 45.061.

(3) If the defendant refuses a claimant’s offer of voluntary binding arbitration:

(a) The claim shall proceed to trial, and the claimant, upon proving medical negligence, shall be entitled to recover damages subject to the limitations in s. 766.118, prejudgment interest, and reasonable attorney’s fees up to 25 percent of the award reduced to present value.
(b) The claimant’s award at trial shall be reduced by any damages recovered by the claimant from arbitrating code-fendants following arbitration.

(4) If the claimant rejects a defendant’s offer to enter voluntary binding arbitration:

(a) The damages awardable at trial shall be limited to net economic damages, plus noneconomic damages not to exceed $350,000 per incident. The Legislature expressly finds that such conditional limit on noneconomic damages is warranted by the claimant’s refusal to accept arbitration, and represents an appropriate balance between the interests of all patients who ultimately pay for medical negligence losses and the interests of those patients who are injured as a result of medical negligence.
(b) Net economic damages reduced to present value shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments.
(c)Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to s. 766.202(9), and shall be offset by future collateral source payments.

(5)Jury trial shall proceed in accordance with existing principles of law.

      . After these events, TGH did hire a full-time pediatric surgeon.

      . In this case, the parents’ damages are all noneconomic. If they had sustained other "net economic damages,” those damages would not have been subject to the cap. See § 766.209(4)(a).

      . Section 766.209 is titled "Effects of failure to offer or accept voluntary binding arbitration."

      .Although the statute states that this limitation is "per incident," a related statute has been interpreted to provide $250,000 per claimant per incident. See St. Mary's Hosp., Inc. v. Phillipe, 769 So.2d 961 (Fla.2000). The parties agree that this statute’s $350,000 cap should be interpreted in the same fashion. Thus, the award of $350,000 for the mother in this case does not preclude a similar award to the father.

      . Candidly, the reasoning in Echarte appears to extend the holding in Kluger in ways the court may not have intended. In Kluger, the no-fault statute eliminated causes of action that did not involve damages in excess of a certain threshold. 281 So.2d at 2. The court appears to hold that such a statute could be constitutional only if the legislature either provided a reasonable alternative form of protection or if it provided no alternative but justified the absence of an alternative on the existence of an overpowering public necessity. Id. at 4. Echarte examined both of these tests in a case where the statutes do not eliminate a cause of action, but rather limit the monetary remedies available under that cause of action.

      . For example, and by way of comparison, this court recently reviewed a wrongful death claim against a pharmacy for professional errors that were similar to medical malpractice. The claim was not subject to the limitations in chapter 766 and even the defense attorneys believed that the jury should award a verdict many times higher than the $350,000 cap that is applicable in this case. See Walgreen Co. v. Hippely, Nos. 2D08-86, 2D08-835, 2010 WL 688227 (Fla. 2d DCA Feb. 26, 2010).

      . The Bureau of Labor Statistics consumer price index inflation calculator, for example, calculates that the equivalent of $300,000 in 1988 was $548,596.79 in 2009. See Bureau of Labor Statistics, CPI Inflation Calculator, http://www.bls.gov/data/inflation_calculator. htm (last visited February 12, 2010).

      . The Personal Representative also suggests that the voters have overridden the Echarte decision by the enactment of article I, section 26, of the Florida Constitution in 2004. That provision protects plaintiffs from excessive attorneys' fees by their own attorneys in medical liability claims. We are unconvinced that it expressly overrides anything in section 766.209.

      . It perhaps should not be a factor in our decision, but we note that, as a practical matter, a remittitur less than $350,000 would entitle Mr. Gardner to seek a new trial, whereas an award of the statutory cap results in closure of this case.


source: Caselaw Access Project

author: COPE, J. SCHWARTZ, Senior Judge

license: Public Domain

text:
    Mynor SOLANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3210.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Rehearing Denied June 8, 2010.

      Carlos J. Martinez, Public Defender, and Leslie Schalley, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   COPE, J.

Mynor Solano appeals his conviction for second-degree murder, claiming that there is a reversible evidentiary error and contending that there is fundamental error in a jury instruction. We conclude that while there was an evidentiary error, the error is harmless under the circumstances of this case, and we reject the claim of fundamental error with regard to the jury instruction.

Defendant-appellant Solano had a romantic and sexual relationship with the victim, Gregorio Rodriguez, for approximately four years. Eventually the victim began dating another man and the defendant found out about it. The defendant and the victim quarreled about this. The State contended that the defendant had killed the victim out of jealousy. The defendant testified that during the quarrel, the victim attacked him and the defendant killed the victim in self-defense.

The first question is whether the trial court erred by admitting into evidence a small cauldron in which the murder weapon, a hammer, was found. When the police searched the defendant’s apartment, they found the cauldron in the defendant’s closet. The cauldron, which might otherwise be described as a miniature black kettle, is about six inches across and six inches tall. It contained 20 small sticks, a knife, a small stake, and the murder weapon. The police photographed the hammer in the cauldron as they found it.

Prior to trial, the defense filed a motion in limine seeking to exclude the cauldron, and photographs of the cauldron, from evidence. The defendant practices Santería, a religion which is controversial because its practices include animal sacrifice. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). According to the defense, the cauldron was an object which was related to the defendant’s practice of Santería. The defense argued that the unfair prejudice from introducing the cauldron and photos into evidence would outweigh whatever marginal relevance the object might have. See § 90.403, Fla. Stat. (2007). The court precluded the introduction of several items which would connect the defendant with Santería. The State contended, however, that it was permissible to introduce the cauldron and photos to show chain of custody of the murder weapon.

The trial court allowed the cauldron and two photographs to come into evidence, but prohibited the parties from mentioning Santería, or the purpose of the cauldron and its contents. The court also allowed the cauldron and sticks to be introduced into evidence and shown to the jury. In closing argument, the prosecutor mentioned the cauldron several times and said “A person who is defending himself does not take those items [the victim’s property] and put them in a cauldron in a closet surrounded by candles.”

We respectfully disagree with the trial court regarding the ruling on this motion in limine. In this case the defendant had admitted killing the victim with the hammer and the entire issue was whether he had done so in self-defense. All the jury needed to know was the undisputed fact that the hammer had been found in the defendant’s closet, a point the defense conceded. As the defense argued, if the hammer had been found in a wastebasket instead of a cauldron, it is unlikely that the State would have sought to introduce the wastebasket into evidence. In any event, there was an unacceptable risk that one or more jurors would know, or guess, the purpose of the cauldron and its contents— and any such juror knowledge or speculation would not be favorable to the defendant. We therefore conclude that the unfair prejudice outweighed the probative value, if any. See State v. Williams, 992 So.2d 330, 333-34 (Fla. 3d DCA 2008). The item should have been excluded.

Under the circumstances of this case, however, we conclude that the error was harmless beyond a reasonable doubt. That is so because the Medical Examiner’s testimony demonstrated that the murder could not have occurred in the way that the defendant testified. By the defendant’s account, the defendant and the victim quarreled about the new boyfriend the victim was seeing. The conversation became heated and according to the defendant, the victim said “go to hell, I feel like killing you.” The defendant said he then concluded that “before he does it, I’ll do it myself.” The defendant stated that the victim was seated on the edge of the bed. According to the defendant, the victim leaned forward to grab an exercise dumbbell, apparently intending to use the dumbbell to attack the defendant. The defendant stated that he grabbed a hammer which was on the floor. The defendant stated that he struck the victim on the back of the head with the hammer and pushed him on the bed. According to the defendant, the victim fell face down onto the bed and the defendant hit him with the hammer two more times.

The Medical Examiner testified that this scenario was highly unlikely. The victim was killed with three severe hammer blows to the top and upper rear portion of the skull. The Medical Examiner said that after the first blow, the victim likely would have fallen to the floor and been incapacitated.

When the victim was found, he was in his bed, lying on his stomach with his arms moderately outstretched along each side of his head. His shirt was off. His glasses, which he always wore, were neatly folded and being held in the victim’s left hand. There was extensive blood spattered on the headboard of the bed and the wall above the headboard. There was no blood trail, no physical evidence that the body had been moved, and no testimony by the defendant that he had moved the body.

By the defendant’s account, the defendant struck the -victim while he was seated on the edge of the bed and was reaching downward. According to the Medical Examiner’s testimony, the victim likely would have fallen and not been able to move. Under the defendant’s account, despite receiving this blow, the victim would have had to stand up, be pushed by the defendant and turn around, collapse on the bed, and remove his own glasses, after which the defendant struck two more severe blows which caused blood spatter all over the headboard and wall above the headboard. Given the Medical Examiner’s testimony, no reasonable juror could have accepted the defendant’s account of the murder.

By the defendant’s account the victim lived for two or three minutes. Although the defendant professed great love for the victim, he did not summon emergency assistance. Instead he stayed in the victim’s apartment for two hours, in which he used the victim’s cellphone to take pictures of the now-deceased victim. Claiming that he was owed money, the defendant took the victim’s wallet, laptop computer, and two cellphones, plus the victim’s family photographs. The defendant used the victim’s cellphones to send text messages pretending to be the victim. These included a message to the victim’s new boyfriend (about whom the victim and the defendant had quarreled), telling the new boyfriend that the victim was breaking up with him. We are satisfied that the evidentiary error regarding the cauldron is harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

The second question on appeal is whether there was fundamental error in the manslaughter jury instruction in this case. The First District has found fundamental error with regard to a portion of the manslaughter-by-act standard jury instruction which “provides that the State had to prove that Appellant ‘intentionally caused [the victim’s] death’ in order to establish that he committed manslaughter.” Montgomery v. State, — So.3d —, —, 2009 WL 350624 (Fla. 1st DCA 2009), review granted, 11 So.3d 943 (Fla.2009). The problem is that a specific intent to kill is not required for second-degree murder, but that phrase is included in the manslaughter-by-act instruction, even though it is a lesser included offense. See Montgomery, — So.3d at —. This court has certified conflict with Montgomery, and has instead followed the Second District’s decision in Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009). Valdes-Pino v. State, 23 So.3d 871 (Fla. 3d DCA 2009); see also Bonilla v. State, 23 So.3d 1256 (Fla. 3d DCA 2009).

Assuming arguendo that Montgomery is correctly decided, the defendant would not be entitled to any relief under the fundamental error doctrine. That is so because the defense requested, and the trial judge gave, a special instruction making the point that if the defendant was found to have used excessive force in self-defense, then the jury could convict on manslaughter. The jury instructions read, in part, as follows with the special instruction being in bold face type:

I now instruct you on the circumstances that must be proved before My-nor Solano may be found guilty of murder in the second degree or any lesser included crime.
Murder in the second degree:
Before you can find the defendant guilty of second degree murder, the state must prove the following three elements beyond a reasonable doubt:
(1) Gregorio Rodriguez is dead.
(2) The death was caused by the criminal act of Mynor Solano.
(3)There was an unlawful killing of Gregorio Rodriguez by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
An act is imminently dangerous to another and demonstrating a depraved mind if it is an act or series of acts that:
(1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another and;
(2) is done from ill will, hatred, spite or an evil intent, and,
(3) is of such a nature that the act itself indicates an indifference to human life.
In order to convict of second degree murder, it is not necessary for the state to prove the defendant had an intent to cause death.
Before you can find the defendant guilty of manslaughter, the state must prove the following two elements beyond a reasonable doubt:
1. Gregorio Rodriguez is dead.
2. Mynor Solano intentionally caused the death of Gregorio Rodriguez.
I further instruct you that if you find that the defendant over-reacted [and] used excessive force to defend himself from the attack of the victim, [and that] such excessive force resulted in the death of the victim, then manslaughter is proven.

(Emphasis added).

In this appeal the defense argues that, even though the trial court gave the defense-requested instruction, the instruction failed to eliminate or modify item 2 of the manslaughter instruction, which stated “Mynor Solano intentionally caused the death of Gregorio Rodriguez.” That language was left in place and the court added the special instruction to it.

We conclude that the special instruction sufficiently addressed the issue under the circumstances of this case. The defense wanted the court to spell out that if the defendant used excessive force in self-defense, then the defendant could be convicted of manslaughter, and that is what the special jury instruction said. We conclude that there is no fundamental error.

Affirmed.

GERSTEN, J., concurs.

SCHWARTZ, Senior Judge

(dissenting in part).

While I agree that the state’s not-so-veiled, thoroughly disingenuous references, through the use of the code word “cauldron,” among others, to Santería rites as practiced by the defendant were grossly improper, I disagree that this established error should be disregarded as harmless. Particularly in view of the second degree murder conviction, it may not be said, I think, that these inflammatory references, which went directly to the character of the defendant, had no effect upon that finding (as opposed, for example, of one of aggravated manslaughter), which is, by definition, the result of what the jury must find was a “depraved mind.” § 782.04(2), Fla. Stat. (2007). See Javier Dejesus Ventura v. State, 29 So.3d 1086 (Fla. 2010) (“Overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution’s case may have played a substantial part in the jury’s deliberation and thus contributed to the actual verdict reached.”) (citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986)).

In Stephenson v. State, 31 So.3d 847 (Fla. 3d DCA 2010), we recently found fundamental error in unpreserved, but highly objectionable references to an issue which may have adversely affected the jury’s characterization of the defendant, and therefore, the degree of the crime of which she may have been guilty. Cf. Montgomery v. State, — So.3d —, 2009 WL 350624 (Fla. 1st DCA 2009), cert. granted, 11 So.3d 943 (Fla. May 7, 2009) (“If the jury found the defendant did not intend to kill, the erroneous instruction effectively precluded the jury from choosing between two possible verdicts: second degree murder or manslaughter by act. Under the erroneous instruction, the jury was directed to pick the greater of these two offenses. Such interference with the jury’s deliberative process tainted the underlying fairness of the entire proceeding.”). In my opinion, this case, in which objections were improperly overruled, presents an a fortio-ri situation.

I would reverse for a new trial.

      . While described in the transcript as a stake, it appears to be a railroad spike.

      . Prior to doing this, the stake and knife were removed from the cauldron.

      . As argued by the State in closing, there is a scenario which is consistent with all of the physical evidence. In his statement to the police, the defendant said that he and the victim had given each other massages before they quarreled. The victim’s body was lying on his stomach with the head turned to one side. The victim's shirt was off. The victim’s glasses were neatly folded and being held in his left hand. This position is consistent with someone who was expecting a massage, or was napping, and received three fatal hammer blows to the head.

       The bracketed words were in the written jury instructions but were not in the transcript of the oral reading of the jury instructions. The written jury instructions were given to the jury-


author: PER CURIAM.

text:
    George TEICHNER, individually and as personal representative of the Estate of Ingrid Teichner, deceased, Appellants, v. Mike IZAK, Yair Oren, and Frieda Oren, Appellees.
    No. 3D08-3186.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Rehearing Denied June 4, 2010.
    Arthur J. Morburger, for appellants.
    Aaron W. Tandy; S. David Sheffman, for appellees.

      Before SHEPHERD, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. Muñiz v. Crystal Lake Project, LLC, 947 So.2d 464, 470 (Fla. 3d DCA 2006).


text:
    HAYES & CARABALLO, PL, Rosemary Hayes, et al., Appellant, v. AUTO-OWNERS INSURANCE COMPANY, Appellee.
    No. 5D08-2761.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2010.
    Rehearing Denied May 12, 2010.
    Rosemary Hanna Hayes, of Hayes & Caraballo, PL, Orlando, for Appellant.
    Robert E. Bonner, of Meier, Bonner, Muszynski, O’Dell & Harvey, P.A., Long-wood, for Appellee.
   PER CURIAM.

We affirm the trial court’s order denying Appellants’ request for attorney’s fees under section 57.105, Florida Statutes (2008), or, alternatively, under the court’s inherent authority. We find no abuse of the broad discretion vested in the trial court when considering such matters. We reverse only as to the trial court’s failure to liquidate the attorney’s fees awarded as a sanction in connection with the August 13, 2007, order on Appellants’ motion to compel.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, ORFINGER and TORPY, JJ., concur.


author: COHEN, J.

text:
    Deepak BIST, Appellant. v. STATE of Florida, Appellee.
    No. 5D09-121.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2010.
    Rehearing Denied May 10, 2010.

      Jack A. Fleischman of Fleischman and Fleischman, P.A., West Palm Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Appellant, Deepak Bist, challenges the denial of his motions to dismiss the charges of attempted lewd and lascivious battery, and computer pornography and child exploitation. We affirm, concluding that Appellant’s due process rights were not violated and the facts sufficed to establish a prima facie case of attempted lewd and lascivious battery.

This case began when the Flagler Beach Police Department (“FBPD”) sought out the services of Perverted Justice, an online watchdog group that seeks to expose pedophiles. To accomplish this goal, Perverted Justice enlists the help of approximately 250 unpaid volunteers, some of whom enter online chat rooms as “decoys” with underage profiles. The decoys wait for adults within the chat rooms to contact them and solicit sexual activity. Other volunteers, also posing as minors, speak with suspects on the telephone to verify their identities. Perverted Justice electronically records and stores the chat logs and telephone conversations, then notifies the police of suspects and their alleged offenses. Once a suspect requests a meeting with a decoy for sexual activity, the decoy directs the suspect to a location where the suspect is apprehended by law enforcement.

With the consent of FBPD, Perverted Justice coordinated a sting operation at a home in Flagler Beach. The National Broadcasting Company (“NBC”) had arranged with Perverted Justice to film the stings for its “To Catch a Predator” series, featured on its “Dateline” television program. In return, NBC agreed to pay Perverted Justice $75,000 per hour of programming that resulted from the sting operation. Perverted Justice ultimately received $150,000 and used the proceeds to pay its expenses. FBPD was aware that NBC would be filming the stings, but did not receive any compensation from NBC or pay Perverted Justice for its services.

Bist initiated an online conversation with “Jennah,” whom he believed to be a thirteen-year-old girl from Flagler Beach. In fact, “Jennah” was a Perverted Justice decoy. Between November 26, 2006, and December 9, 2006, Bist engaged in explicit, sexual conversations with “Jennah” and arranged to meet at “her house” to engage in sexual activity. Perverted Justice notified FBPD of Bist’s conversations and his intent to meet “Jennah” at the sting house.

Bist traveled from his home in West Palm Beach to Flagler Beach bearing flowers and chocolate. FBPD officers, waiting outside, monitored Bist with numerous cameras and microphones as he entered the sting house. Confronted by Chris Hansen, the television host of “To Catch a Predator,” Bist realized there would be no tryst with a young girl and exited, whereupon he was arrested by FBPD. A search of Bist’s car resulted in the seizure of lubricant and condoms. Bist was charged with attempted lewd and lascivious battery, as well as computer pornography and child exploitation. He subsequently filed motions to dismiss, arguing that FBPD’s conduct was so egregious that his due process rights were violated. This defense is also referred to as objective entrapment. Additionally, Bist claimed the undisputed facts did not constitute the commission of attempted lewd and lascivious battery. After the trial court denied relief, Bist pled no contest, reserving his right to appeal the trial court’s dispositive ruling. We review de novo a trial court’s order on a motion to dismiss. State v. Perkins, 977 So.2d 643, 644 (Fla. 5th DCA 2008).

The defense of outrageous government conduct or objective entrapment is evaluated under the due process provision of Article I, section 9, of the Florida Constitution. Munoz v. State, 629 So.2d 90, 98 (Fla.1993). It requires reviewing the totality of the circumstances “ ‘in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.’ ” Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (quoting Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 89 L.Ed. 1029 (U.S.1945)). Due process is violated when “ ‘the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.’ ” Tercero v. State, 963 So.2d 878, 883 (Fla. 4th DCA 2007) (quoting State v. Glosson, 462 So.2d 1082, 1084 (Fla.1985)). It is a balancing test; the court must weigh the rights of the defendant against the government’s need to combat crime. McDonald v. State, 742 So.2d 830, 831 (Fla. 4th DCA 1999).

Law enforcement is given no guidance except what is provided in case law. The difficulty in defining these limits was recognized by the supreme court in State v. Williams, 623 So.2d 462, 465 (Fla.1993). The court noted, “ ‘due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’” Id. (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)).

In this case, Bist asserts two arguments in support of his due process claim. First, he argues Perverted Justice’s contingent fee arrangement with NBC created a financial incentive to entrap as many people as possible in violation of Glosson. Second, Bist contends FBPD “took an unconstitutional shortcut” by allowing Perverted Justice to perform all the investigative work without supervising or monitoring its conversations with Bist. Underlying both of Bist’s arguments is the premise that Perverted Justice was an agent of FBPD by virtue of FBPD “engaging” its services. Assuming, without deciding, this premise is valid, Bist’s arguments do not demonstrate a due process violation.

Cases finding a due process violation based on outrageous government conduct have one common thread: affirmative and unacceptable conduct by law enforcement or its agent. In Glosson, 462 So.2d at 1082, a sheriffs department employed an informant to conduct a reverse-sting drug operation. As consideration, the informant was promised ten percent of the proceeds from any civil forfeitures arising out of a successful prosecution. Id. at 1083. The informant’s testimony and cooperation were necessary for a successful prosecution. Id. at 1085. Because of the “enormous financial incentive not only to make criminal cases, but also to color his testimony or even commit perjury in pursuit of the contingent fee,” the supreme court found a due process violation. Id. The supreme court further stated, “[t]he due process rights of all citizens require us to forbid criminal prosecutions based upon the testimony of vital state witnesses who have what amounts to a financial stake in criminal convictions.” Id.

In Williams, 623 So.2d at 463, the defendant was arrested during a reverse sting operation by the Broward County Sheriffs Office for purchasing crack cocaine within 1,000 feet of a school. The supreme court reversed the defendant’s conviction, finding a due process violation where the Sheriffs Office illegally manufactured the crack cocaine. Id. at 467; see also Farley v. State, 848 So.2d 393, 398 (Fla. 4th DCA 2003) (holding that law enforcement’s manufacture of child pornography as part of an email solicitation, coupled with promises of protection from government interference, was a violation of due process). Similarly, in Madera v. State, 943 So.2d 960, 962 (Fla. 4th DCA 2006), the defendant’s due process rights were violated when the informant pretended to be romantically interested in the defendant and induced him to purchase drugs with promises of sex and pleas that she needed the drugs to cope with cancer.

This case is materially distinguishable from the cases cited above. Here, we do not have a situation where law enforcement incentivized, induced, or otherwise manufactured the instrumentalities for the crime to occur. Rather, Perverted Justice’s volunteers simply entered online chat rooms and waited for someone to solicit sexual activity from a person believed to be a minor. Perverted Justice created nothing more than an opportunity. This is not prohibited. State v. Dickinson, 370 So.2d 762, 763 (Fla.1979). Law enforcement may provide the facilities necessary to carry out the crime, and the mere use of deceit does not violate due process. Id. (quoting U.S. v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)).

Although Perverted Justice had a contingency fee arrangement with NBC, Bist was not solicited, induced, or otherwise lured into seeking a sexual liaison with a Perverted Justice decoy. The undisputed facts show that Bist, on his own initiative, contacted “Jennah” and set up a meeting intending to engage in sexual activity with a thirteen-year-old girl. Any concern that Perverted Justice had an incentive to manufacture crime or commit perjury is alleviated by the fact that every conversation between Bist and the decoy was electronically recorded and stored. There is absolutely no suggestion that Bist did not voluntarily engage in the conversations or that the transcribed contents are anything but accurate.

Further, the mere failure to supervise or monitor Perverted Justice does not violate due process. See State v. Lopez, 908 So.2d 484, 485 (Fla. 4th DCA 2005) (holding that “failure to properly supervise the confidential informant, standing alone, did not amount to a due process violation”); State v. Figuereo, 761 So.2d 1252, 1255 (Fla. 3d DCA 2000) (same). It is a lack of supervision resulting in unscrupulous conduct by an informant which gives rise to due process concerns. There is no suggestion of impropriety by Perverted Justice, and the recording and storage of all communications between Bist and the decoy insured the integrity of the investigation. Based on the foregoing, we do not find the methods employed by law enforcement so outrageous that due process considerations would bar prosecution.

Bist also contends that his charge of attempted lewd and lascivious battery should have been dismissed because his arrival at the sting house was not an overt act. A motion to dismiss should only be granted where the most favorable construction to the State could not establish a prima facie case of guilt. State v. Taylor, 16 So.3d 997, 999 (Fla. 5th DCA 2009). The facts, viewed in the light most favorable to the State, are sufficient to justify the denial of Bist’s motion to dismiss.

Criminal attempt requires three elements: the intent to commit a crime, an overt act towards its commission, and failure to successfully complete the crime. Morehead v. State, 556 So.2d 523, 524 (Fla. 5th DCA 1990). An overt act is one that manifests the pursuance of a criminal intent, going beyond mere preparation to the actual commencement of the crime. Id. at 524-25. Drawing the distinction between a preparatory act and an overt act is often difficult and depends on the facts of each case. Hudson v. State, 745 So.2d 997, 1000 (Fla. 2d DCA 1999).

In Wiggins v. State, 816 So.2d 745, 747 (Fla. 4th DCA 2002), the court held that Wiggins committed an overt act towards the commission of a lewd and lascivious act when he handed a fourteen-year-old girl ten dollars and a letter that expressed his desire to engage in sexual activity and detailed where and when they could engage in such activity. In Hudson, 745 So.2d at 999, a detective, posing as a fourteen-year-old boy, responded to Hudson’s personal advertisement in a pornographic magazine and began exchanging letters with him. In Hudson’s letters to the boy, he described various sexual acts he wished to engage in and encouraged the boy to come live with him. Id. The court ruled that mailing the fictitious boy a plane ticket and arranging for his transportation to Hudson’s house “from such a distance, even without bringing the boy into the house, constituted an overt act sufficient to support the crime of attempted lewd and lascivious.” Id. at 1000.

In the instant case, Bist prepared to, and took significant steps towards consummating his desire to have sex with a thirteen-year-old. He conducted sexually explicit online conversations and arranged to meet the girl at her home to engage in sexual activity. Beyond these preparatory acts, Bist drove over 200 miles from his home in West Palm Beach to the decoy home in Flagler Beach. He arrived at the prearranged time with flowers, chocolates, lubricant, and condoms. Not only did Bist travel a substantial distance in pursuance of his criminal intent, but he also brought with him items to facilitate his criminal intent and physically entered the decoy home. See Hudson, 745 So.2d 997. These facts, viewed in the light most favorable to the State, are sufficient to prove a prima facie case of attempted lewd and lascivious battery. Accordingly, we affirm.

AFFIRMED.

SAWAYA, and LAWSON, JJ., concur.

      . Prior to the Flagler Beach sting, Perverted Justice conducted similar stings without compensation, both with and without NBC, for other law enforcement agencies.

      . In cases of child molestation, courts have suggested that slight progression towards the consummation of the crime is sufficient for an overt act. See Hudson v. State, 745 So.2d 997, 1000 (Fla. 2d DCA 1999).

      . While we question the result reached in State v. Duke, 709 So.2d 580 (Fla. 5th DCA 1998), we find this case distinguishable. The issue in Duke involved the sufficiency of the evidence for the charge of attempted sexual battery. Unlike Duke, this case involves an appeal of a motion to dismiss following a plea of nolo contendere to the charge of attempted lewd and lascivious battery. In addition, we find the determination of an overt act to be case specific, and here, Appellant took additional steps toward the consummation of the crime.


text:
    Elvis HERNANDEZ, Appellant, v. CITY OF MIAMI and Florida Department of Transportation, Appellees.
    No. 3D09-1320.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.
    Rehearing and Rehearing En Banc Denied June 16, 2010.

      Theodore Dempster, for appellant.
    Julie O. Bru, City Attorney, and Richard S. Otruba and John A. Greco, Assistant City Attorneys, for appellee, City of Miami; and Lydecker, Lee, Berga, & De Za-yas, Onier Llopiz, and Joan Carlos Wizel, Miami, for appellee, Florida Department of Transportation.
    Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
   PER CURIAM.

Elvis Hernandez appeals from the trial court’s order striking sham pleadings and dismissing a personal injury claim with prejudice. We reverse.

Hernandez sued the City of Miami (“the City”) and Florida Department of Transportation (“DOT”) for injuries sustained after falling into a defective storm drain on a City sidewalk. Hernandez’s complaint alleged injuries to his left leg and back, and that he suffered exacerbation of a preexisting condition.

DOT moved to strike sham pleadings. DOT alleged fraud because there were discrepancies in Hernandez’s answers to interrogatories and during deposition testimony regarding his injuries. The trial court struck the pleadings and dismissed the case with prejudice. This appealed followed.

Hernandez asserts that the trial court abused its discretion in dismissing his claim. DOT and the City contend that the trial court did not abuse its discretion in dismissing Hernandez’s claim for fraud on the court. We agree with Hernandez and reverse.

A trial court has the inherent authority to dismiss an action as a sanction when the plaintiff has perpetuated a fraud on the court. However, this power should be exercised cautiously, sparingly, and only upon a clear showing of fraud on the court. Ramey v. Haverty Furniture Cos., 993 So.2d 1014, 1018 (Fla. 2d DCA 2008). Fraud on the court occurs where there is clear and convincing evidence “that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” 993 So.2d at 1018 (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)).

A trial court’s decision on whether to dismiss a case for fraud on the court is reviewed under a narrow abuse of discretion standard. See Cherubino v. Fenstersheib & Fox, P.A., 925 So.2d 1066 (Fla. 4th DCA 2006). For the trial court to properly exercise its discretion, there must be an evidentiary basis to dismiss the case. See Ramey, 993 So.2d at 1018.

Here, the trial court did not have a clear and convincing evidentiary basis to dismiss the case for fraud on the court. Therefore, we find that the trial court abused its discretion in striking the pleadings and dismissing with prejudice Hernandez’s claim. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.


author: SHEPHERD, J.

text:
    Sanford D. BOSEM, Appellant, v. COMMERCE AND INDUSTRY INSURANCE COMPANY, Appellee.
    Nos. 3D09-1357, 3D09-1861.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Rehearing Denied June 8, 2010.
    Todd Landau, Fort Lauderdale, for appellant.
    Butler Pappas Weihmuller Katz Craig and Scott J. Frank, Tampa, for appellee.
    Before SHEPHERD, CORTINAS, and ROTHENBERG, JJ.
   SHEPHERD, J.

Appellant, Sanford Bosem, appeals the trial court’s order granting final summary judgment in favor of his PIP provider, Commerce and Industry Insurance (“C & I”), following Bosem’s initiation of suit to recover unpaid insurance benefits for medical expenses and lost wages purportedly resulting from an automobile accident. We find the trial court correctly ruled C & I was entitled to judgment as a matter of law, and affirm the order on appeal. However, in concluding C & I was entitled to a statutory fee award, we reverse the order denying attorney’s fees, and remand for a determination as to amount.

Sanford Bosem, a licensed Florida attorney, contends the trial court erred in disposing of this case on summary judgment where allegations of fraud were at issue. Ordinarily, we would agree with Bosem that cases centering on allegations of fraud are unsuitable for summary judgment, see Burton v. Linotype Co., 556 So.2d 1126, 1128 (Fla. 3d DCA 1989); however, we have before us the extraordinary case where the facts evidencing fraud are so clear from the record that entry of summary judgment is not only appropriate, but compelled. See Stephens v. Kies Oil Co., Inc., 386 So.2d 1289, 1290 (Fla. 3d DCA 1980).

Despite Bosem’s eleventh-hour attempts to alter his position in response to Appellee’s affirmative defenses, counterclaims and motion for summary judgment, the facts of this case are clear. Appellant sought insurance benefits under the guise of “lost wages,” despite full compensation by his employer for a year’s worth of income. Furthermore, his calculation of weekly earnings was immensely exaggerated. It also was not until his suit was threatened by allegations of fraud that he began re-characterizing his claim as one of “loss of earning capacity,” as opposed to “lost wages,” notwithstanding the absence of any plausible evidence in support of this position.

Bosem further seeks reversal on the notion his insurance claim amounts to two separate and distinct claims—one for medical expenses and one for lost wages— and fraudulent misrepresentations as to one claim do not vitiate coverage on the other. Section 627.736(4)(g), Florida Statutes (2006), states in pertinent part: “any insurance fraud shall void all coverage arising from the claim related to such fraud under the personal injury protection coverage of the insured person who committed the fraud.” (Emphasis added). In harmony with this statutory provision, the fraud provision in C & I’s insurance policy sets forth: “any insurance fraud shall void all personal injury protection coverage arising from the claim with respect to the insured who committed the fraud.” Bosem’s contention that the purported fraud is only “related to,” and only “arises from” claims for lost wages, and is separate and apart from the claims for medical expenses, is contrary to a commonsense reading of the language of these provisions, as well as to public policy considerations. Fraud provisions are enacted to provide a disincentive to individuals considering the commission of such misrepresentations. Allowing for payment of one portion of a claim would nonsensically allow an insured to engage in a “cost-benefit analysis” with respect to the contemplation of such fraud. The “arising from” and “relating to” language clearly seeks to encompass all claims pertaining to a single event resulting in purported losses. On this record, we unreservedly affirm the trial court’s order granting final summary judgment in favor of C & I.

As to the issue on cross-appeal, we agree with Appellee’s assertion the trial court erred in denying its claim for attorney’s fees and costs. C & I offered to settle this case by taking judgment against it in the sum of $250 pursuant to Section 768.79 of the Florida Statutes—Offer of Judgment and Demand for Judgment. The statute allows the court, in its discretion, to deny an award of attorney’s fees, but only if it determines that a qualifying offer “was not made in good faith.” See TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606, 612 (Fla.1995) (emphasis added). Here, there is no evidence C & I’s offer was not made in good faith, and the trial court made no finding to that effect, as evidenced by the written order denying fees. We, therefore, reverse the order denying fees and remand this cause for a determination of the amount of attorney’s fees and costs reasonably incurred by C & I.

Affirmed in part, reversed in part and remanded.

      . Bosem's own exhibits evidence a salary package involving a twelve-month consulting contract (fifty-two weeks), while his sworn testimony evidences he divided his total consulting salary by thirteen weeks in order to arrive at his weekly earnings claim.


text:
    Samuel Lee HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-55.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Samuel Lee Harris, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Anton v. State, 976 So.2d 6 (Fla. 2d DCA 2008).


text:
    Jose Luis IZQUIERDO, Appellant, v. J. HUMPHREY MANAGEMENT LLC and Florida Unemployment Appeals Commission, Appellees.
    No. 3D09-2832.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Rehearing Denied June 8, 2010.

      Jose Luis Izquierdo, in proper person.
    M. Elaine Howard, Deputy General Counsel, Tallahassee, for appellee, Florida Unemployment Appeals Commission.
    Before COPE, GERSTEN, and CORTIÑAS, JJ.
   PER CURIAM.

This is an appeal of an order of the Unemployment Appeals Commission (the “Commission”), which affirmed a decision of an unemployment compensation appeals referee. The referee held Appellant Jose Luis Izquierdo disqualified from receiving unemployment benefits because he voluntarily left employment without good cause attributable to the employer.

Mr. Izquierdo worked as a plumber in Miami. He was asked to move to Houston, Texas to work. He and other plumbers went to Houston but came back for the Christmas holiday break. Once in Miami, the other plumbers did not wish to return to Houston and Mr. Izquierdo could not afford to go back to Houston by himself. Thereafter, Mr. Izquierdo remained in Miami and filed for unemployment benefits. His benefits were denied.

On appeal, Mr. Izquierdo has filed an initial brief with two attachments. The attachments are unverified letters from witnesses who suggest that Mr. Izquier-do’s employer in Houston told him his services were no longer necessary after Mr. Izquierdo failed to return to Houston. The two letters were not before the Commission and are not in the record on appeal. Therefore, we cannot consider those letters on appeal. See City of Miami v. St. Joe Paper Co., 347 So.2d 622 (Fla. 3rd DCA 1977). Upon review of the record, we affirm the Commission’s order.

Affirmed.

       Even if we were to consider the letters, it is doubtful that they support Mr. Izquierdo’s argument that he was laid off.


text:
    Lorenzo BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-128.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2010.
    Rehearing Denied May 28, 2010.
    Lorenzo Brooks, Bowling Green, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Lorenzo Brooks appeals from the denial of his motion for additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Brooks alleges that he is entitled to jail credit from the date a violation of probation warrant was issued, on June 21,1990, because of an “unreasonable delay” by the Seminole County Sheriff in executing the warrant. See, e.g., Martinez v. State, 965 So.2d 1244 (Fla. 2d DCA 2007). Because Brooks’ entitlement to relief is not apparent on the face of the record, the trial judge properly denied Brooks’ motion. See Beard v. State, 27 So.3d 186 (Fla. 5th DCA 2010) (“As in all motions filed under rule 3.800(a), the mov-ant bears the burden to demonstrate a sentencing error apparent from the face of the record.”).

AFFIRMED.

SAWAYA, LAWSON and COHEN, JJ., concur.


author: EVANDER, J.

text:
    Jesus VELAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-186.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2010.
    Rehearing Denied May 28, 2010.
    Jesus Velazquez, Madison, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Velazquez appeals from the summary denial of his rule 3.800(a) motion to correct illegal sentence in which he alleged that his sentence was imposed in violation of the double jeopardy clause. We affirm. A sentence that violates double jeopardy principles is cognizable under rule 3.800(a) where the violation can be determined without an evidentiary hearing. Hopping v. State, 708 So.2d 263 (Fla.1998). Here, however, the record reflects that the complained of “sentence enhancement” occurred prior to the conclusion of Velazquez’s sentencing hearing.

AFFIRMED.

MONACO, C.J. and JACOBUS, J., concur.

      . Fla. R.Crim. P. 3.800(a).

      . Our affirmance is without prejudice to Velazquez seeking relief pursuant to Florida Rule of Criminal Procedure 3.850 for ineffective assistance of counsel. Velazquez admitted to violating the terms of his probation on four third-degree felony offenses. Although the original sentencing documents are not part of our record, it appears that the trial court had the understanding that Velazquez would be entitled to three years of DOC credit on each of the underlying offenses. If that understanding was correct, the trial court’s decision to impose three consecutive five-year prison sentences for the violations of probation would require Velazquez to serve an additional six years in prison. However, throughout the hearing, including after pronouncement of sentence, the trial court expressed that its intention was to require Velazquez to serve only an additional three years in prison.


text:
    Yougraj L. BEHARRY, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D08-2794, 5D09-962.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2010.
    Spencer Rhodes, of R. Spencer Rhodes, P.A., Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Hanna, 858 So.2d 1248 (Fla. 5th DCA 2008).

MONACO, C.J., ORFINGER and JACOBUS, JJ., concur.


author: MORRIS, Judge.

text:
    INGENIX, Appellant, v. Susan HAM, as Personal Representative of the Estate of Gerald Ham, Deceased; Anthony Pollizi, M.D.; Vander M. Wynn, M.D.; James Forensky, M.D.; Peace River Anesthesiology, P.A.; Punta Gorda HMA, Inc.; Karen M. MacKenzie, M.D.; and Surgical Obesity Solutions, LLC, Appellees.
    No. 2D09-2211.
    District Court of Appeal of Florida, Second District.
    May 5, 2010.
    Hala Sandridge and Sarah Lahlou-Amine of Fowler White Boggs P.A., Tampa, for Appellant.
    William E. Partridge of Grossman, Roth & Partridge, Sarasota, for Appellee Susan Ham.
    No appearance for remaining Appellees.
   MORRIS, Judge.

Gerald Ham’s health insurer, United-Healthcare, paid almost all of Ham’s medical bills relating to a medical procedure that ultimately resulted in his death. After settling with the medical providers in a medical malpractice lawsuit, Ham’s estate (the Estate) contended that it was only required to reimburse UnitedHealthcare a reduced amount according to the formula set out in section 768.76(4), Florida Statutes (2008). We must decide whether section 768.76(4) applies to limit United-Healthcare’s reimbursement out of the Estate’s settlement with the tortfeasors when language in the insurance policy provides for full reimbursement to United-Healthcare in the case of such a settlement. We hold that section 768.76(4) controls, and we affirm the final order of the trial court limiting UnitedHealthcare’s reimbursement under section 768.76(4).

In 2004, Ham suffered complications from an elective laparoscopic gastric bypass procedure, which resulted in his death. According to its policy with Ham, UnitedHealthcare paid almost all of Ham’s medical expenses in the total amount of $154,075.46. The Estate filed a complaint for medical malpractice against the medical providers involved in Ham’s care during and after the procedure and, through two settlements, recovered a total amount of $1,150,000. The Estate filed a motion for equitable distribution, seeking a determination from the trial court that under the formula set forth in section 768.76(4), the Estate owed UnitedHealthcare only $81,660 of the $154,075.46 after taking into account UnitedHealtheare’s pro rata share of costs and attorney’s fees incurred by the Estate in obtaining the settlements. Inge-nix, UnitedHealthcare’s recovery agent, argued in response that UnitedHealthcare is entitled to full reimbursement based on a provision in the insurance policy that provides for reimbursement in full from any settlement recovery. The trial court ruled in favor of the Estate on this issue, and Ingenix appealed.

Section 768.76(4) provides that a collateral source provider that has a right of reimbursement, such as UnitedHealthcare, “shall have a right of reimbursement from a claimant to whom it has provided collateral sources if such claimant has recovered all or part of such collateral sources from a tortfeasor.” It also provides that

[s]uch provider’s right of reimbursement shall be limited to the actual amount of collateral sources recovered by the claimant from a tortfeasor, minus its pro rata share of costs and attorney’s fees incurred by the claimant in recovering such collateral sources from the tortfea-sor. In determining the provider’s pro rata share of those costs and attorney’s fees, the provider shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement which is for costs and attorney’s fees.

Id.

In seeking equitable distribution in the trial court, the Estate represented that it incurred $543,922.07 in attorney’s fees and costs, which equaled 47% of the settlement amount. UnitedHealthcare’s reimbursement claim of $154,075.46 was thus subject to reduction by 47%, resulting in United-Healthcare’s being entitled to only $81,660 in reimbursement. Counsel for the Estate later reduced his fees by 16%, thereby decreasing the reduction percentage under section 768.76(4) and increasing the total reimbursement amount to $86,282.25.

Ingenix relies on Travelers v. Boyles, 679 So.2d 1188 (Fla. 4th DCA 1996), for the proposition that section 768.76 only applies to claims arising out of reimbursement rights not founded on a contract. In Travelers, 679 So.2d at 1189, a health insurer paid medical expenses on behalf of its insured and sought full reimbursement from a settlement the insured received from his uninsured motorist carrier. The insured argued that the health insurer’s claim was barred by section 768.76(4) because the uninsured motorist carrier is not a tortfeasor under section 768.76(4). The health insurer argued that it was “not seeking reimbursement under the statute, but rather under its policy.” 679 So.2d at 1189. The Fourth District held that the statute was not applicable in that case (because the uninsured motorist carrier was not a tortfeasor as required by the statute) but that the statute “is not the exclusive method for a health insurer to seek reimbursement pursuant to a policy provision.” Id. According to the holding in Travelers, where the statute is not implicated, a policy provision may allow for full reimbursement. Travelers does not stand for the proposition that a policy provision controls when section 768.76(4) is otherwise applicable.

The statute is clearly implicated here. This case presents the exact scenario section 768.76(4) was designed to address. In Osler v. Collins, 870 So.2d 65, 67-68 (Fla. 2d DCA 2003), this court held that where an insurance policy contains a right of reimbursement, as here, section 768.76(4) applies and requires a reduction of the amount of the insurer’s reimbursement by its pro rata share of costs and attorney’s fees.

The trial court in this case properly applied section 768.76(4) to determine the amount of reimbursement owed to Ingenix on behalf of UnitedHealtheare. We therefore affirm the final order on appeal.

Affirmed.

WALLACE and CRENSHAW, JJ., Concur.

      . We question the apparent conclusion in Travelers, also relied upon by Ingenix, that section 768.76(4)’s application is limited — by the language in section 768.76(1) — “to actions in which 'liability is admitted or is determined by the trier of fact and in which damages are awarded.' " 679 So.2d at 1189. In Osier v. Collins, 870 So.2d 65, 68 (Fla. 2d DCA 2003), this court addressed the difference between subsections (1) and (4) and noted that each subsection applies separately in different factual scenarios, depending on whether a right of reimbursement exists. We agree with the holding in Travelers that subsection (4) did not apply to the factual scenario in that case because the uninsured motorist carrier was not a tortfeasor but not because subsection (1) limits the application of subsection (4).


text:
    Mark HOLMES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-910.
    District Court of Appeal of Florida, Third District.
    May 5, 2010.
    Mark Holmes, in proper person.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before COPE and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This is an appeal from an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. The defendant, Mark Holmes, raises four grounds of ineffective assistance of counsel in his motion. We affirm grounds one and four, finding those claims do not have merit. As for grounds two and three, where the defendant alleges his trial counsel failed to adequately prepare for the competency hearing and call two witnesses for his defense, we reverse because the post-conviction record does not conclusively show the defendant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D). The record now before us merely includes the motion for post-conviction relief, an affidavit of Patricia Silvers, and the trial court’s order. Thus, we reverse the order and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing the appellant is entitled to no relief.

Reversed, in part, and remanded for further proceedings.


text:
    Terrence HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-412.
    District Court of Appeal of Florida, Third District.
    May 5, 2010.
    Terrence Harris, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Harris v. State, 902 So.2d 183 (Fla. 3d DCA 2005); Harris v. State, 849 So.2d 449 (Fla. 3d DCA 2003), review dismissed, 25 So.3d 1221 (Fla.2009); see also Harris v. State, 12 So.3d 287 (Fla. 3d DCA 2009); Debuisson v. State, 947 So.2d 531 (Fla. 3d DCA 2006).


author: SUAREZ, J.

text:
    Kenel DOLCE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1057.
    District Court of Appeal of Florida, Third District.
    May 5, 2010.
    Rehearing Denied June 8, 2010.
    Kenel Dolce, in proper person.
    Bill McCollum, Attorney General, for appellee.

      Before SUAREZ, LAGOA, and SALTER, JJ.
   SUAREZ, J.

Affirmed. We grant the Public Defender’s motion to withdraw as counsel and affirm the conviction and sentence below.


text:
    Lorell HOLLAND, Petitioner, v. Kimberly BARFIELD, as Personal Representative for the Estate of Brandon Scott Ledford, Respondent.
    No. 5D09-3828.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2010.
    James E. Mitchell and Todd E. Brant of Keller Landsberg, P.A., Fort Lauderdale, for Petitioner.
    Richard S. Wright of The Wright Firm, P.A., Orlando, and J. Brock McClane of McClane Partners, Orlando, for Respondent.
   COHEN, J.

Lorell Holland, Petitioner, seeks a writ of certiorari quashing the trial court’s order that compelled Petitioner to produce all computer hard drives and all cell phone SIM cards in her possession to Respondent, Kimberly Barfield, as Personal Representative of the Estate of Brandon Scott Ledford. We grant certiorari and quash the trial court’s order.

Respondent filed suit against Petitioner and five others alleging damages for the wrongful death of Brandon Ledford on February 28, 2009, when he fell from the tenth floor balcony of Petitioner’s residence in North Miami Beach. Respondent alleged that Ledford died because the defendants breached their duties of care to him.

Respondent served a request to produce upon Petitioner, seeking, inter alia:

4. Any and all computer hard drives in possession of the [Petitioner] from 24 hours preceding February 27, 2009 to present; and
5. Any and all cell phones in possession of the [Petitioner] from 24 hours preceding February 27, 2009 to the present.

Petitioner objected to these requests, asserting that they sought irrelevant information unlikely to lead to the discovery of admissible evidence, were overbroad in scope with respect to time and subject matter, were harassing in nature and constituted a “fishing expedition,” and invaded her right to privacy under Article I, section 28 of the Florida Constitution.

Respondent moved to compel production of the hard drives and cell phones, seeking evidence of communications among the defendants through mobile phone text messages, Facebook.com, and MySpace.com. After a hearing, the trial court granted the motion. The trial court’s order also directed that Respondent agree to a protective order and confidentiality agreement wherein all information would be for the attorney’s eyes only unless a court order was first obtained; prohibited the use or sharing of financial or social security information with any third party; and required any third party provided discovery to sign a copy of the order and agree to be bound by its terms.

Petitioner argues that the trial court’s order violates Florida Rule of Civil Procedure 1.850 because it gives Respondent unlimited access to her hard drive and SIM card without satisfying the requirements of Menke v. Broward County School Board, 916 So.2d 8, 11-12 (Fla. 4th DCA 2005). In particular, she asserts that Respondent could examine every byte of information on the devices in contravention of her right of privacy and without regard to attorney-client or work-product privileges.

Petitioner also contends that the order violates rule 1.280(b)(5) because it ordered her to first relinquish possession of the hard drive and SIM card, rather than permitting her to review the information beforehand and produce the response herself. Further, the order allowed Respondent’s computer expert to review the hard drive and SIM card outside the presence of Petitioner’s counsel, thereby depriving Petitioner of an opportunity to object and preserve her claims of privilege and right of privacy, resulting in irreparable harm. Lastly, she asserts that the trial court’s order is unduly burdensome because it deprives her of her only telephone and computer for an undetermined period of time, which affects her ability to prepare for classes, take notes, research, and communicate with other students and faculty at Florida Atlantic University where she attends college.

Respondent contends that Petitioner thwarted discovery by failing to produce any documents responsive to her request, which therefore allows the requesting party to access the computer without first affording a review by the producing party. See Menke, 916 So.2d at 12, citing Strasser v. Yalamanchi, 669 So.2d 1142, 1145 (Fla. 4th DCA 1996). Further, Respondent suggests that the degree of irreparable harm Petitioner would allegedly suffer was minimal compared to the parties in Menke, Strasser, and Rasmussen v. South Florida Blood Service, 500 So.2d 533, 534 (Fla.1987).

This court has certiorari jurisdiction to review a discovery order that departs from the essential requirements of law by requiring disclosure of allegedly confidential information or discovery requests that are overbroad and thereby cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal. Life Care Ctrs. of Am. v. Reese, 948 So.2d 830 (Fla. 5th DCA 2007); Wooten, Honeywell & Kest, P.A. v. Posner, 556 So.2d 1245 (Fla. 5th DCA 1990). The irrelevancy of the discovery alone is not a basis for granting the extraordinary remedy of certiorari, “unless the disclosure ‘may reasonably cause material injury of an irreparable nature.’ ” State Farm Gen. Ins. Co. v. Grant, 641 So.2d 949, 952 (Fla. 1st DCA 1994) (quoting Allstate Ins. Co. v. Langston, 627 So.2d 1178 (Fla. 4th DCA 1993)).

This case is very similar to Menke, 916 So.2d 8, where the court issued a writ of certiorari and quashed the trial court’s order to produce a party’s computers. There, the trial court ordered a high school teacher, accused of exchanging sexually explicit emails with students and making derogatory comments regarding high school personnel, to produce all computers in his household for inspection by the school board’s computer expert. The Fourth District described rule 1.350(a)(3) as “broad enough to encompass requests to examine a computer hard drive but only in limited and strictly controlled circumstances, acknowledging that unlimited access to anything on the computer would constitute irreparable harm, because it would expose confidential, privileged information to the opposing party.” Id. at 11 (citing Strasser, 669 So.2d 1142). The court indicated that a search might be approved after the requesting party proved (1) evidence of any destruction of evidence or thwarting of discovery; (2) a likelihood the information exists on the devices; and (3) no less intrusive means exists of obtaining the information. Id. at 12. One alternative the court suggested would allow defendant’s representative to physically access the computer system in the presence of plaintiffs representative under an agreed-upon set of procedures to test plaintiffs theory that it is possible to retrieve the information. Id. The court also said that “[w]here a need for electronically stored information is demanded, such searching should first be done by defendant so as to protect confidential information, unless, of course, there is evidence of data destruction designed to prevent the discovery of relevant evidence in the particular case.” Id. at 12.

In this case, there is no evidence of any destruction of evidence or thwarting of discovery. Further, the request to pro-duce sought the electronic media themselves, not specific information contained therein. Since Respondent asserts that the electronic media was sought as a “back-up” to the information sought in items 1. through 3. of the request to produce, the record demonstrates that a less intrusive means was already achieved as part of the compromise the parties reached. Items 1. through 3. requested the same information, ie., statements among the defendants and photographs taken regarding the incident for the same time period.

As such, that discovery request, subject to the parties’ compromise, represents the less intrusive means to obtain the same discovery without violating Petitioner’s rights and privileges. Further, the record does not show that Respondent made any request for Petitioner to first search the media so she could protect her confidential information.

The unlimited breadth of the trial court’s order allows Respondent to review, without limit or time frame, all of the information on Petitioner’s computer and mobile phone SIM card without regard to her constitutional right of privacy and the right against self-incrimination or privileges, including attorney-client, work product. Although the discovery Respondent seeks does not necessarily include medical records, such as those protected by the constitutional right of privacy in the Rasmussen and Strasser cases, Petitioner’s asserted right against self-incrimination and right of privacy nonetheless enjoy protection. The court in Menke protected the petitioner’s assertion of his rights to privacy and against self-incrimination in the face of an order allowing wholesale access to his personal computer that would expose confidential communications and matters extraneous to the litigation such as banking records.

The order permitting Respondent’s expert to examine Petitioner’s hard drive and SIM card did not protect against disclosure of confidential and privileged information and, therefore, caused irreparable harm. Because the order departed from the essential requirements of law and would cause material injury to Petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal, we grant the petition for certiorari and quash the trial court’s discovery order.

WRIT OF CERTIORARI GRANTED and ORDER QUASHED.

PALMER and EYANDER, JJ., concur.

      . Respondent’s counsel informed the trial court that he had reached a compromise with Petitioner's counsel regarding items 1., 2., and 3. of the request to produce, which sought statements by Petitioner and other defendants regarding the incident and all photographs in her possession taken during the time period.

      . Respondent specifically declined a tampering order because Petitioner was not a threat to destroy evidence.

      . The broad production sought in this case might, in fact, produce medical records, banking records, and other confidential information in Petitioner's computer hard-drive.