author: PER CURIAM. WELLS, J., HARDING, Senior Justice,

text:
    Darryl MOODY, Appellant, v. STATE of Florida, Appellee.
    No. SC94435.
    Supreme Court of Florida.
    Jan. 23, 2003.
    Rehearing Denied April 3, 2003.

      Robert A. Norgard, Bartow, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

We have on appeal the judgment and sentence of the trial court finding Darryl Moody (Moody) guilty of first-degree murder and imposing a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we reverse the trial court’s ruling denying Moody’s motion to suppress, vacate the judgment and sentence, and remand for a new trial.

Factual and Procedural Background

On May 16, 1994, Scott Mitchell (Mitchell), the manager of a citrus grove, happened upon a stolen vehicle in a remote area of the grove, and was shot two times in the head with two different guns. Mitchell was found a short time thereafter, still in his vehicle. His wallet, cell phone, and other personal items were still in his vehicle. Mitchell’s vehicle was located about fifty feet behind a stripped green Buick. The Buick had been reported stolen. Evidence of dirt behind the wheels of Mitchell’s vehicle, and the fact that Mitchell’s foot was still on his brake, indicate that Mitchell was attempting to back up quickly when he was fatally shot.

Neither of the murder weapons was found at the scene of the crime, and no latent fingerprints or hair samples were discovered. Tire and shoe imprints were made from impressions found around Mitchell’s vehicle. Neighbors indicated they saw a silver or gray Cadillac and a green Buick pass near the scene of the homicide that morning and heard gun shots at some point thereafter. Other witnesses testified that they saw a gray or silver Cadillac and a large green car in the area of the citrus grove, but none were able to positively identify the occupants.

On May 23, 1994, a week after Mitchell was shot, Darryl Moody’s vehicle was stopped by police in a high-crime, high-drug-use area. Sergeant Terry Dowdy (Dowdy) testified that on that day he was working undercover and patrolling the area with Investigator Eugene Bly. Dowdy recognized Moody and believed that Moody had a suspended driver’s license. Because he was in an unmarked car, Dowdy called a uniformed officer to make a traffic stop. The officers were unable to confirm Moody’s driving status before the stop because they needed Moody’s date of birth to do so. Once stopped, Dowdy approached Moody and asked him for his driver’s license. Moody admitted he did not have one. Moody was arrested and placed in the patrol car.

Officers called a tow truck for Moody’s car and conducted a routine inventory search at the scene. A Davis P-380 handgun was found in the car, and Dowdy discovered through the police dispatch that the gun may have been reported stolen, although that information could not be confirmed. Officers confiscated the gun for further investigation. Moody was taken to the police station, issued a citation for driving with a suspended license, and released. The next day, the sheriffs department informed police that the Davis P-380 handgun found in Moody’s car was the same gun that was reported stolen from the Buick found at the scene of Mitchell’s homicide. The Davis P-380 was not, however, one of the weapons used to shoot Mitchell.

After Moody left the police station, he contacted his friend Bruce Foster and sold Foster a Rossi .38 Special. About a month before the Mitchell murder, Moody had in his possession a .38 revolver handgun at a nightclub, and Foster thought that the gun he was buying was that same handgun. When Moody sold Foster the gun, Moody said that the gun had “been through a lot.” After purchasing the Rossi .38, Foster heard on the street that the gun was used to shoot somebody. The Rossi .38 was listed as part of the contents in a rose or pink colored Cadillac reported stolen on April 10, 1994.

On May 24, 1994, the day after the traffic stop and the sale of the Rossi .38 to Foster, Moody was arrested again, this time for possession of a firearm (the Davis P-380) by a convicted felon. This second arrest came after the sheriffs office linked the Davis P-380 found in Moody’s car to the stripped green Buick that was found at the scene of the Mitchell homicide. Police then obtained a search warrant for Moody’s car and for Moody’s house. They also searched, by consent, Moody’s girlfriend’s sister’s house, where Moody sometimes stayed. The probable cause affidavits in support of the applications for the warrants stated that Moody was in possession of the Davis P-380 handgun from the stolen Buick, as well as stereo equipment and other items believed to have been taken from the Buick. Police searched Moody’s house, car, and his girlfriend’s sister’s house, and found certain items matching the description of items reported stolen from the Buick, as well as a pair of Sierra hiking boots. The boots were taken to compare the treads to footprints found at the scene of the homicide.

After Moody’s second arrest (for possession of a firearm by a convicted felon), Foster attempted to help Moody get out of jail. He contacted the police, turned in the Rossi .38, and told police he had gotten the gun from some men in a drug deal. Foster indicated he thought this would help Moody. However, after several hours of questioning, Foster eventually told police that he purchased the gun from Moody. The Rossi .38 was one of the handguns used to shoot Mitchell.

The State’s theory at trial was that Moody and his brother Dexter Moody were stripping the Buick in a secluded area of a citrus grove when Scott Mitchell came upon them unexpectedly. Mitchell was shot in the head twice by separate guns, and either shot was fatal. The State theorized that the second shot, at close range, came from Moody. Moody was convicted of felony murder and sentenced to death. Dexter Moody was never charged with any crime related to the Mitchell murder.

Moody raises five claims on appeal: the trial court erred in denying his motion to suppress; the State’s circumstantial evidence was insufficient to establish his guilt; the trial court erred in allowing an alternate juror to be substituted for a juror who became ill after the jury began deliberations; the State failed to present sufficient evidence that the dominant motive for the murder was to avoid or prevent a lawful arrest and this aggravating factor should be stricken; and the sentence of death is disproportionate. Because we find that the trial court erred in denying Moody’s motion to suppress, we do not discuss the other claims.

Motion to Suppress

The State’s case against Moody arose out of a traffic stop initiated by Sergeant Dowdy based on Dowdy’s belief that Moody did not have a valid driver’s license. Following the stop, police discovered a Davis P-380 handgun that linked Moody to the murder crime scene, which in turn led police to search Moody’s house, car, and his girlfriend’s sister’s house. When Moody was arrested for possession of a firearm by a convicted felon, in relation to the Davis P-380 found- in his car, Bruce Foster came forward with one of the murder weapons, a Rossi .38, telling the police he got it from Moody.

Moody filed at least three motions to suppress evidence, seeking to exclude the P-380 handgun, bullets, stereo equipment, and items taken from the stolen Buick. He claimed that all of the items were obtained as a result of an illegal traffic stop and were the “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The trial court denied Moody’s motion, holding that the initial stop was not an illegal Terry stop because it was not the product of “random or capricious police activity” and was not based on an “inarticulate hunch” or “unparticularized suspicion,” all of which Terry condemns. In its sentencing memorandum, the trial court stated that:

In this case, Sgt. Dowdy knew that the Defendant had no license at the time of their last encounter, he knew the Defendant was inclined to drive without lawful authority, and he knew from the common experience that it is unlikely that driving privileges are restored during incarceration. Thus, it was reasonable to be suspicious that the Defendant’s driving privileges still had not been restored.

In reaching this conclusion, the trial court relied on cases involving the staleness doctrine which examine the period of time between when an officer has knowledge that a driver has an invalid license and when the stop occurs. See State v. Wade, 673 So.2d 906 (Fla. 3d DCA 1996) (a traffic stop made eleven days after knowledge of suspension was found to be reasonable); State v. Leyva, 599 So.2d 691, 693 (Fla. 3d DCA 1992) (four- to five-week-old “knowledge of defendant’s previously suspended driver’s license was not stale and provided the officer with a reasonable suspicion upon which to make a valid legal stop”); State v. Carrs, 568 So.2d 120, 120 (Fla. 5th DCA 1990) (predicate knowledge for stop was “two days to a week old”). The trial court also cited to cases from other states involving the same issue. See Stewart v. State, 220 Ga.App. 295, 469 S.E.2d 424 (1996) (no time frame specified, but stop declared legal); State v. Duesterhoeft, 311 N.W.2d 866 (Minn.1981) (stop valid based on knowledge that was one month old); State v. Gibson, 665 P.2d 1302 (Utah 1983) (stop valid based on actual knowledge three months old). Based on these cases, the trial court found there to be no bright-line test for establishing when facts giving rise to a reasonable and articu-lable suspicion become stale. The court then found that in this case, Dowdy’s suspicion was reasonable because the knowledge he had concerning Moody’s driving status was not stale. We disagree with the trial court’s conclusion that Dowdy’s knowledge was not stale.

In reviewing a trial court’s ruling on a motion to suppress, appellate courts must accord a presumption of correctness to the trial court’s determination of the historical facts, but must independently review mixed questions of law and fact that ultimately determine the constitutional issues arising in the context of the Fourth Amendment. See Connor v. State, 803 So.2d 598, 608 (Fla.2001); Stephens v. State, 748 So.2d 1028, 1032 (Fla.1999); Albritton v. State, 769 So.2d 438 (Fla. 2d DCA 2000). The historical facts in this case are not in dispute.

Dowdy testified at the suppression hearing that he first met Moody in 1987 or 1989. Before the traffic stop on May 23, 1994, it had been a year or two years since Dowdy had any contact with Moody. It may have been as long as three years since Dowdy last checked Moody’s driving status. Although Dowdy knew that Moody had been in prison at some time prior to 1994, he did not know exactly when Moody was in prison, for how long, or when Moody was released. Additionally, Moody’s prior license suspension was not for a fixed period, and it was possible for Moody to regain a valid license within a few days. Moody could have easily obtained a valid license before Dowdy stopped him on May 23, 1994. Based on these facts, it cannot be said that Dowdy had fresh knowledge concerning Moody or the status of his driver’s license at the time of the traffic stop on May 23, 1994. Therefore, upon our independent review of the mixed questions of law and fact that ultimately determine the constitutional issues, we conclude that Dowdy was acting on a hunch or mere suspicion and thus acted illegally in stopping the defendant. Because the information on which Dowdy relied was not fresh, the trial court erred in denying Moody’s motion to suppress.

The dissenting opinion of Senior Justice Harding submits that our analysis of the staleness doctrine ignores United States Supreme Court precedent, namely, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), and United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). That line of cases discusses the necessity that an officer have a reasonable suspicion, under the totality of the circumstances, that criminal activity may be afoot, so as to justify an investigatory stop. The dissent asserts that the totality of the circumstances in this case justified the stop because the officer’s experience and knowledge of the defendant and the defendant’s driving status evinced an objective manifestation to support the investigatory stop.

While we recognize that the totality of the circumstances may have, at an early point in time, justified the investigatory stop, we also recognize that under the staleness doctrine, justification for an investigatory stop may dissipate with time. When, as in this case, as many as three years passes without any further information about a person’s driving status, and when, as in this case, that person’s license can be restored through a simple administrative process, the staleness of the officer’s information is indeed an important factor in considering the totality of the circumstances showing an objective manifestation to justify the stop. See Denton v. State, 524 So.2d 495 (Fla. 2d DCA 1988) (staleness is an “important factor” in determining probable cause, although not the only factor).

The majority does not ignore Supreme Court precedent; we have considered the totality of the circumstances. Under these circumstances, we find that the information the officer relied upon to justify the investigatory stop was stale and the stop was therefore illegal.

Although the stop was illegal, the fruit of the poisonous tree doctrine does not automatically render any and all evidence inadmissible. A court may admit such evidence if the State can show that (1) an independent source existed for the discovery of the evidence, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); or (2) the evidence would have inevitably been discovered in the course of a legitimate investigation, Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); or (3) sufficient attenuation existed between the challenged evidence and the illegal conduct, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). None of these three exceptions are supported in this record.

First, the State did not argue, nor do we find any evidence in this record to support, an independent source for the discovery of the evidence. What the State did argue was that the Davis P-380, and all of the other evidence, would have inevitably been discovered after Foster turned in the Rossi .38 and told police he bought it from Moody. In making a case for inevitable discovery, the State must show “that at the time of the constitutional violation an investigation was already under way.” Nix v. Williams, 467 U.S. 431, 457, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (Stevens, J., concurring). “[IJnevitable discovery involves no speculative elements.... ” Id. at 444 n. 5, 104 S.Ct. 2501. In other words, the State cannot argue that some possible further investigation would have revealed the evidence. See State v. Duggins, 691 So.2d 566, 568 (Fla. 2d DCA 1997); Bowen v. State, 685 So.2d 942 (Fla. 5th DCA 1996) (holding that speculation may not play a part in the inevitable discovery rule and that the focus must be on demonstrated fact capable of verification). In other words, the case must be in such a posture that the facts already in the possession of the police would have led to this evidence notwithstanding the police misconduct. In this case, however, the police had not initiated any investigation of Moody for the Mitchell murder prior to the traffic stop, and the police had no reason to suspect Moody had any involvement in the murder.

Second, the evidence does not support the application of the inevitable discovery doctrine. It is speculation to argue that once Foster turned in the murder weapon and told the police that Moody sold it to him, the police would have ultimately obtained the search warrants and then discovered the other evidence Moody sought to have suppressed. Foster stated that when Moody sold him the Rossi .38, Moody was concerned about the P-380 that the police found in his car. Had Moody not been illegally stopped, we cannot say that it was inevitable that the police would have found the P-380, that Moody would have become concerned about the weapons and sold Foster the Rossi .38, or that Foster would have turned the weapon in to police. The illegal stop and Moody’s initial arrest set in motion an unbroken chain of events, which included the discovery of the P-380, Moody’s sale of the Rossi .38 to Foster, a second arrest for possession of a firearm by a convicted felon, Foster’s attempt to help get Moody out of jail for the second arrest by turning in the Rossi .38 to police, and the search of the several residences. These events were the result of the initial stop, and nothing in this record demonstrates that the State would have inevitably discovered any of the evidence Moody sought to suppress.

Finally, the record demonstrates that the evidence was not sufficiently attenuated. At the first suppression hearing, the State mentioned that there were issues of attenuation but did not develop this argument in any detail. In order to determine if evidence is sufficiently attenuated, the court must consider three factors: (1) the temporal proximity of the arrest and the discovery of the evidence sought to be suppressed; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the police misconduct. Walker v. State, 741 So.2d 1144 (Fla. 4th DCA 1999) (citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)).

The temporal proximity of the arrest and the discovery of the evidence sought to be suppressed was immediate. In fact, the initial stop of Moody and the discovery of the Davis P-380 handgun occurred contemporaneously. The officers discovered the gun at the scene of the stop while Moody was sitting in the back seat of the patrol car.

Furthermore, there were no intervening circumstances between the stop and the discovery of the handgun. The chain of events, beginning with the stop and ending with the discovery of the gun and other equipment in Moody’s car, was not interrupted by any superseding event.

This record contains limited information concerning the purpose and flagrancy of the police misconduct. Dowdy testified at the suppression hearing that he had heard of the murder but had no reason to believe that Moody was involved until the day after the arrest when the sheriffs department contacted him about the P-380 handgun. That information then linked Moody to the crime scene. In fact, when Dowdy called in the serial number of the gun to headquarters, the serial number came up with a “hit,” meaning the gun had been reported stolen, but headquarters indicated the gun was a .38, not a P-380. Dowdy could not confirm at the time of the initial stop and arrest whether the gun was in fact stolen. Thus, Moody was booked and released with a citation, the equivalent of a notice to appear. There is no evidence that the officers had a motive for stopping Moody, other than to determine the status of his driver’s license. Based on these facts, it cannot be said that the discovery of the evidence was attenuated from the initial police misconduct, i.e., the illegal stop.

Because the record in this case does not support an exception to the fruit of the poisonous tree doctrine, the motion to suppress the evidence obtained as a result of the illegal Terry stop should have been granted.

Conclusion

The traffic stop of Moody was unlawful because it was not based on a reasonable suspicion. Because the State has failed to demonstrate any exception to the exclusionary rule, the fruits of that unlawful stop, should have been suppressed. We therefore reverse the trial court’s order denying Moody’s motion to suppress, vacate the judgment and sentence, and remand for a new trial consistent with this opinion.

It is so ordered.

ANSTEAD, C.J., PARIENTE, LEWIS, and QUINCE, JJ., and SHAW, Senior Justice, concur.

WELLS, J., dissents with an opinion, in which HARDING, Senior Justice, concurs.

HARDING, Senior Justice, dissents with an opinion, in which WELLS, J., concurs.

WELLS, J.,

dissenting.

I dissent because I believe that the exclusion of this evidence extends the exclusionary rule too far.

The majority cites no case in support of its conclusion that the suspicions of the police officer were so unreasonable that this evidence has to be suppressed as a deterrent to police misconduct. To the contrary, this was a police officer who had checked the driver license status of the defendant in the past. He never knew the defendant to have anything but a suspended license. It is my view that what would have been unreasonable and a neglect of duty would have been for this officer not to check on the status of the defendant’s driver license.

I believe the majority is in serious error in reversing this murder conviction on such a basis.

HARDING, Senior Justice, concurs.

HARDING, Senior Justice,

dissenting.

I dissent because I believe the majority fails to employ the correct analysis in evaluating whether the officer’s action in stopping the defendant’s vehicle in this case was supported by reasonable suspicion. Recently, in United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), the United States Supreme Court stated the following:

When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the “totality of the circumstances ” of each case to see whether the detaining officer has a “particularized and objective basis ” for suspecting legal wrongdoing. See, e.g., id., at 417-418, 101 S.Ct. 690. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” Id. at 418, 101 S.Ct. 690. See also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (reviewing court must give “due weight” to factual inferences drawn by resident judges and local law enforcement officers). Although an officer’s reliance on a mere “ ‘hunch’ ” is insufficient to justify a stop, Terry, supra, at 27, 88 S.Ct. 1868, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, [U.S. v.] Sokolow, supra, [490 U.S. 1] at 7, 109 S.Ct. 1581 [104 L.Ed.2d 1].
Our cases have recognized that the concept of reasonable suspicion is somewhat abstract. Ornelas, supra, at 696, 116 S.Ct. 1657 (principle of reasonable suspicion is not a “ ‘finely-tuned standard]’ ”); Cortez, supra, at 417, 101 S.Ct. 690 (the cause “sufficient to authorize police to stop a person” is an “elusive concept”). But we have deliberately avoided reducing it to “ ‘a neat set of legal rules,’ ” Ornelas, supra, at 695-696, 116 S.Ct. 1657 (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

Id. at 273-74, 122 S.Ct. 744 (emphasis added). Moreover, in United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the U.S. Supreme Court stated that an investigatory stop is justified if there is “some objective manifestation” that the person about to be stopped is engaged in unlawful activity. Id. at 417, 101 S.Ct. 690 (emphasis added).

In this case, however, the majority fails to engage in any “totality of the circumstances” analysis, nor does it consider whether there was any “particularized and objective basis” or “objective manifestation” for the officer to reasonably suspect that Moody might be driving with a suspended license. Furthermore, the majority neglects to recognize that, as the U.S. Supreme Court has articulated, this process allows for officers to draw on then-experience to make inferences from and deductions about the cumulative information available to them. Instead, the majority opts for examination of whether the officer in this case had “fresh knowledge,” to conclude, without citation to any authority from this State or any other, that the trial court erred in finding that the officer stopped the defendant based on a reasonable suspicion. Based on Arvizu, however, this is clearly a flawed approach.

In the instant case, it was clearly evinced at trial that the stop was based on the following information: The officer knew the defendant for a period of at least four, and possibly six, years prior to the stop; ever since the officer knew the defendant, he knew the defendant to have had a suspended driver’s license; during this period, the officer had occasion to check the defendant’s records; court records reflected that defendant’s driver’s license had expired in 1977 and then was suspended since 1984 or 1985, when the defendant had pled guilty or no contest to the charge of driving with a suspended license; the officer knew that the defendant had no license at the time of their last encounter; and the officer knew that the defendant was recently incarcerated and it was common knowledge that driving privileges are not restored during incarceration.

It was based on this experience with (and resulting knowledge of) the defendant that the officer, upon recognizing the defendant and observing him driving an automobile, called for a marked patrol car to stop defendant on the suspicion that he was driving with a suspended license. Therefore, in applying the above standards to the present case, it cannot be said that the totality of the circumstances of the officer’s actions did not evince some objective manifestation to support the officer’s suspicion that the defendant may have been driving with a suspended license. And notwithstanding whether the officer had seen the defendant in a year or two since his last encounter, the officer’s actions in the present case are exactly in line with those allowed by the U.S. Supreme Court, i.e., he relied on his experience to make a reasonable inference from the cumulative information available to him. This qualitative analysis also appears much more logical and workable than the mechanical quantitative measurement of time as proposed by the majority.

This case is much different from the situation in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), where the U.S. Supreme Court found an investigatory stop of a motorist to be without “at least articulable and reasonable suspicion that a motorist is unlicensed.” Id. at 663, 99 S.Ct. 1391. Unlike the stop in the instant case, the stop in Prouse was made randomly and at the officer’s complete and unbridled discretion, without any previously specified, neutral criteria. See id. As the Court stated, the random stop was the “kind of standardless and unconstrained discretion [that] is the evil the Court has discerned in previous cases.” Id. at 661, 99 S.Ct. 1391. We do not have those circumstances here.

Therefore, based on the totality of the circumstances presented in this case, I would find that the traffic stop in this case was indeed based on an articulable and reasonable suspicion, and I would thus affirm the trial court’s order denying the defendant’s motion to suppress the handguns and other evidence implicating him as the murderer of the victim in this case. Accordingly, I would also affirm the defendant’s convictions and the trial court’s sentence of death.

WELLS, J., concurs.

      . The trial court properly denied Moody’s motion for judgment of acquittal because the evidence submitted to the jury was sufficient to sustain the conviction. See Lewis v. State, 754 So.2d 897 (Fla. 1st DCA 2000) (when considering whether evidence is sufficient to support a conviction, the reviewing court considers all evidence at trial, including evidence erroneously admitted).

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . This more qualitative approach also is consistent with Denton v. State, 524 So.2d 495 (Fla. 2d DCA 1988), where the Second District stated:
      The "staleness” argument relates to whether information relied upon to establish probable cause to support a search is too stale to indicate that a crime is being committed or is about to be committed. The "staleness” principle is not fatal to the establishment of a reasonable, well-founded suspicion necessary to support the investigatory stop of a vehicle.

        Id. at 498. Therefore, as the Denton court recognized, "staleness” appears to be, at most, only a factor in the “totality of the circumstances” analysis of whether a stop was based upon reasonable suspicion.


source: Caselaw Access Project

author: PARIENTE, J. HARDING, Senior Justice, WELLS, J.,

license: Public Domain

text:
    AMENDMENT TO THE RULES OF JUVENILE PROCEDURE, FLA. R. JUV. P. 8.350.
    No. SC00-2044.
    Supreme Court of Florida.
    March 6, 2003.
    The Honorable Joel M. Silvershein, Chair, Juvenile Court Rules Committee, Fort Lauderdale, FL; the Honorable John M. Alexander, Former Chair, Juvenile Court Rules Committee, St. Augustine, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; the Honorable Sandy E. Karlan, Circuit Judge, Chair for the Florida Bar Commission on the Legal Needs of Children, Miami, FL, and Gerard F. Glynn, Associate Professor, Barry University School of Law, Orlando, FL, and Rhoda Smith Kibler, Staff Director, Florida Bar Commission on the Legal Needs of Children, Tallahassee, FL; Teresa A. Kramer, Assistant General Counsel, and Theresa Walsh, Chief Legal Counsel, Department of Children & Families, Tallahassee, FL; Deborah Anne Schroth, Florida Legal Services, Inc., Jacksonville, FL, and Sarah Harriet Bohr of Bohr and Harrington, LLC, Atlantic Beach, FL, for the Public Interest Law Section of The Florida Bar; and Christina A. Zawisza and John M. Ratliff, Children First Project, Nova Southeastern University, Fort Lauderdale, FL, and Stephen F. Hanlon of Holland & Knight LLP, Tallahassee, FL, Petitioner.
    The Honorable Joseph P. Farina, Chair, Florida Conference of Circuit Judges, Miami, FL; the Honorable Cindy S. Leder-man, Administrative Judge of the Juvenile Division, the Honorable Lester Langer, Associate Administrative Judge of the Juvenile Division, the Honorable Jeri B. Cohen, Circuit Judge, Juvenile Dependency Division, and the Honorable William E. Gladston, Senior Judge, Eleventh Judicial Circuit, Miami, FL; the Honorable Daniel P. Dawson, Chair, Children’s Court Improvement Committee, Kissimmee, FL; Linda A. Wells, Florida Department of Children & Families, Tallahassee, FL, and Charles M. Auslander, District Administrator, District 11, Florida Department of Children & Families, Miami, FL; Xavier Cortada of the Voice Project, the University of Miami Children & Youth Law Clinic, Miami, FL; Karen Gievers, Children’s Advocacy Foundation, Inc., Tallahassee, FL; Carolyn S. Salisbury and Bernard P. Perl-mutter, the University of Miami Children & Youth Law Clinic, Coral Gables, FL; Professor Susan Stefan, University of Miami School of Law, Coral Gables, FL, and Ira A. Burnim, Bazelon Center for Mental Health Law, Washington, DC; and Ward L. Metzger, Appellate Coordinator, Public Defender’s Office, Jacksonville, FL, on behalf of Howard H. Babb, Jr., Public Defender, President, Florida Public Defender Association, Tavares, FL; Karen Gievers, Children’s Advocacy Foundation, Tallahassee, FL; the Honorable Ronald Alvarez, West Palm Beach, FL, Professor Kathy Cerminara, Nova Southeastern University, Fort Lauderdale, FL, the Honorable D. Bruce Levy, Miami, FL, the Honorable John T. Parnham, Pensacola, FL, Dr. Edward Sczechowicz, Ph.D., Coral Gables, FL, the Honorable Ginger Lerner Wren, Fort Lauderdale, FL, and Professor Bruce J. Winick, University of Miami School of Law, Coral Gables, FL; Brent R. Taylor, Advocacy Center for Persons with Disabilities, Inc., Tallahassee, FL; Nancy Schleifer, a member of The Florida Bar, Coconut Grove, FL; David A. Giant, a member of The Florida Bar, High Springs, FL; Frank A. Kreidler, a member of The Florida Bar, Lake Worth, FL; Walter Hona-man, Team Child Project Attorney and David Bazerman Dependency Law Project Director, Legal Aid Service of Broward County, Inc., Fort Lauderdale, FL; Patrick Farrell, Fort Myers, FL; Sari and David Rutt, Fort Myers, FL; Andrew D. Havens, Jr., Fort Myers, FL; and Robert G. Schwartz, Executive Director, Juvenile Law Center, Philadelphia, PA, Responding.
   PARIENTE, J.

We consider once again proposed Florida Rule of Juvenile Procedure 8.350, Placement of Child into Residential Treatment Center after Adjudication of Dependency, submitted to this Court by the Juvenile Court Rules Committee (the committee). See Amendment to the Rules of Juvenile Procedure, Fla. R. Juv. P. 8.350, 804 So.2d 1206 (Fla.2001). We begin by providing the pertinent background.

The process that has lead to our final promulgation of rule of procedure 8.350 began with our consideration of M.W. v. Davis, 756 So.2d 90 (Fla.2000), a case involving the commitment of a dependent child to a locked residential mental health treatment facility against the child’s wishes. In M.W., this Court considered whether an evidentiary hearing that complied with the substantive and procedural requirements of the Baker Act was required before a court could order a dependent child in the temporary legal custody of the Department of Children and Family Services (the department) to be placed into residential treatment. We ultimately found that an evidentiary hearing that complied with the Baker Act was not required, see id. at 106, but stated:

[T]he procedures that the dependency court must follow before residential treatment is ordered should be clearly set forth for the guidance of dependency court judges, the Department and the parties to the dependency proceeding. As stated above, at a minimum, these procedures should include a hearing in which the child has a meaningful opportunity to be heard. Accordingly, we direct that the Juvenile Court Rules Committee submit to this Court no later than June 30, 2000, proposed rules that will set forth the procedures to be followed by the dependency court when the Department of Children and Families seeks an order committing a dependent child to a residential facility for mental health treatment. The Committee shall give due regard to both the rights of the child and the child’s best interests.

Id. at 109 (emphasis supplied).

The committee subsequently submitted proposed rule 8.350 to this Court. The committee’s rule provided for notification to the dependency court and all parties within seventy-two hours of the child’s placement in a residential mental health facility. Regarding appointment of counsel, the rule provided discretion to the court in determining whether to appoint counsel for the child. The proposed rule provided for the first hearing to take place within five days of the court receiving notice of placement, and it constituted a status conference at which the child was not required to be present. A minority of the committee disagreed with the committee’s proposed rule and submitted a minority report detailing the reasons why the appointment of an attorney should not be discretionary and pointing out other concerns with the rule.

In Amendment to the Rules of Juvenile Procedure, Fla. R. Juv. P. 8.350, 804 So.2d 1206 (Fla.2001), this Court published a modified rule that differed from the committee’s proposed rule in two ways. First, the Court’s rule mandated the appointment of counsel when the child objected to placement in a residential mental health treatment facility. See id. at 1212. In deciding to make counsel mandatory when the child objected to placement, the Court stated:

[W]e recognize the strong policy reasons raised by the comments in favor of appointment of an attorney for a dependent child in order to ensure that the child has a meaningful opportunity to be heard (e.g., the importance of an attorney-client privileged relationship between the child and counsel, and the therapeutic benefits that representation would provide to the child). We also anticipate that among the benefits from the attorney’s advocacy for the child may be a determination that the child’s best interests will in fact be served by an alternative less restrictive placement. This will not only benefit the child but the system.

Id. The second difference between the committee’s rule and the Court’s proposed rule is that the Court’s rule incorporated a precommitment hearing. See id. at 1213. The Court noted that a precommitment hearing would “enhance the child’s perception that he or she has a voice and that his or her stated interests are being considered in determining whether placement is in the child’s best interests and whether the placement is the least restrictive alternative available.” Id. at 1214. In proposing these changes, we noted that incorporating counsel and a precommitment hearing into the proceedings would not be inconsistent with section 39.407(5), Florida Statutes (2001), which lists the procedures the department must follow in order to place a child who is under the legal custody of the department in a residential treatment center. We concluded that these additional safeguards would “complement the procedures set out by the Legislature.” Id.

Due to the changes to the committee’s proposed rule, this Court “determined that it is preferable to publish [the] proposed substitute rule for additional comment in The Florida Bar News so [the Court] can hear from all interested persons prior to making a final decision as to the rule’s adoption.” Id. at 1212 (footnote omitted). After the Court published its proposed rule for comment, the committee reported back to this Court, providing comments and suggesting revisions to the Court’s proposed rule. We received comments and heard from all interested persons in oral argument.

After reviewing the committee’s proposed revisions, considering the comments to this Court’s proposed rule and to the revisions proposed by the committee, and hearing oral argument, we adopt rule 8.350 and approve all of the committee’s changes to the Court’s proposed rule. We further add an additional subdivision to the rule, rule 8.350(a)(10), as discussed below.

We start our analysis by observing that all who commented in the instant proceedings and appeared at oral argument undoubtedly care about and want what is best for Florida’s children. We commend each commentator for actively and vocally advocating for what he or she believed would best serve and protect dependent children who face placement in a residential mental health treatment facility.

Having carefully considered the arguments in support of and against the rule as proposed by this Court, we conclude that a rule governing the involuntary placement of children in residential treatment should incorporate both a precommitment hearing and appointment of counsel for a child when that child objects to residential placement.

Rule 8.350 will standardize the procedures to be followed by trial courts before a child is placed against his or her will in a residential treatment facility. The adoption of this rule is necessary to implement our conclusion in M.W. that the commitment process must afford due regard to both the rights of the child and the child’s best interests. See M.W., 756 So.2d at 109. Further, these additional procedures are safeguards that will provide the child with the “meaningful opportunity to be heard,” which we concluded in M.W., 756 So.2d at 108, was the minimum required to comply with due process and to ensure that commitment to a residential facility is the least restrictive treatment alternative for the child.

Our decision to adopt a rule that requires the appointment of counsel when the child objects to placement is consistent with the recommendations made in the final report of The Florida Bar’s Commission on the Legal Needs of Children (the commission), which studied issues relating to the representation of children over a three-year period. In its report, issued in June 2002, the commission recommended that counsel be mandatory for children in cases where the State seeks commitment of dependent children to residential mental health treatment facilities.

The greatest concern expressed by commentators opposed to the appointment of counsel and a precommitment hearing is that there will not be enough attorneys available to represent dependent children who object to placement. These commentators fear that children who are in dire need of residential treatment will suffer while the court spends days or even weeks searching for an attorney to represent these children. We conclude that this fear is unfounded.

The children the department seeks to commit to a residential facility constitute a small percentage of the total number of dependent children. The department’s February 15, 2002, response to this Court’s request for information, indicates that 392 and 518 dependent children were placed in residential treatment during fiscal years 1999-2000 and 2000-2001, respectively. Some of these children had attorneys appointed by the trial court to represent them, as did the child in M.W.

Further, there are multiple sources of experienced attorneys that can be tapped by judges to represent children in rule 8.850 proceedings. First, there are legal services and legal programs throughout the State that could provide representation to children. Second, there are also five law schools in the state that run clinical programs specializing in advocacy for children. Graduates of these clinical programs have had extensive training in children’s law and are located throughout the State. In addition, the Florida Bar Commission on the Legal Needs of Children submitted an appendix with its comments demonstrating that there are attorneys with dependency training and experience in each of the department’s districts. Attorneys who have filed comments indicate that there is a source of attorneys throughout the State who, if necessary, are available to provide representation on a pro bono basis. Although pro bono representation should be the exception, not the rule, when it comes to representation of children, we note that Florida’s Rules of Professional Conduct expressly state that attorneys in good standing with the Bar have a professional responsibility to render legal services to the poor. See R. Regulating Fla. Bar 4-6.1. We are aware that some attorneys seeking to reach the aspirational twenty-hour goal of pro bono legal service accomplish this goal by representing children in dependency proceedings.

Finally, regarding potential sources of funding, several commentators pointed out that during the 2002 legislative session the Florida Legislature appropriated, and Governor Bush approved, $7.5 million to Guardian Ad Litem programs for representation of children in chapter 39 proceedings. See"Ch. 2002-394, § 7, at 4613-15, Laws of Fla. Chapter 39 governs proceedings related to children and section 39.407(5) specifically governs proceedings related to the placement of dependent children into residential treatment facilities. Thus, it is possible that a portion of the funding appropriated by the Legislature and approved by Governor Bush could be used as a source to pay those attorneys who are appointed to represent dependent children in rule 8.350 proceedings as mandated by this rule.

In light of the foregoing, we do not believe that there will be a shortage of attorneys who are experienced and willing to represent dependent children. However, even if the worst-case scenario of an attorney not being available to represent a dependent child arises, the proposed rule has an express exception, which provides that if the child’s condition is so severe that he or she will be harmed by waiting for a placement hearing, the court may order placement immediately. See Fla. R. Juv. P. 8.350(a)(5). Thus, the child’s mental health is not compromised under the rule.

Further, we have added an additional procedural precaution through subdivision (a)(10). This subdivision allows the court to hold a precommitment hearing in the absence of counsel for the child when the trial court determines that counsel for the child is not immediately available and the trial court determines that the child will be harmed if the hearing is postponed. However, if the court determines that a hearing is necessary under this subdivision, the child must be present at the hearing and the court must afford the child an opportunity to be heard (unless the court determines that the child’s mental or physical condition is such that a court appearance is not in the child’s best interest). Affording the child the opportunity to speak in the absence of counsel will serve the aforementioned goals of providing the court with the maximum information possible and the child with the assurance that he or she is being listened to and that his or her opinion counts. The proposed rule provides that, even if counsel is not available at the time of the hearing, counsel should be appointed as soon as practical thereafter with a provision for an additional hearing.

Accordingly, we adopt new Rule of Juvenile Procedure 8.350 as reflected in the appendix to this opinion. We thank the committee and all the individuals who filed comments with this Court. The new rule shall become effective immediately. In adopting this rule, we express no opinion as to its constitutionality. As all of the language is new, we forego the usual underlining and strike-through type format.

It is so ordered.

ANSTEAD, C.J., LEWIS and QUINCE, JJ„ and SHAW, Senior Justice, concur.

HARDING, Senior Justice, concurs in part and dissents in part with an opinion.

WELLS, J., dissents with an opinion.

HARDING, Senior Justice,

concurring in part and dissenting in part.

I concur in the adoption of the provisions of new Florida Rule of Juvenile Procedure 8.350, with one exception. In my earlier concurring opinion in this case, I expressed concern that dependent children who are involuntarily placed in treatment facilities under section 39.407(5), Florida Statutes (2002), are given less protection than children who are civilly committed under the Baker Act. See Amendment to Rules of Juv. Procedure, 804 So.2d 1206, 1215 (Fla.2001) (Harding, J., concurring). While the Baker Act requires appointment of a public defender to represent a person who is the subject of an involuntary commitment petition, see § 394.467(4), Fla. Stat. (2002), there is no provision in section 39.407(5) for appointment of counsel. I urged the committee and any other interested parties to comment on this disparity.

The comments received and the majority opinion here take the position that appointing counsel for dependent children facing involuntary commitment is a good idea to ensure that a dependent child has adequate protection and to ensure that the child feels that he or she is being listened to and is being treated fairly. While I agree with this position, the majority sets forth no constitutional or statutory basis for requiring that counsel be appointed. Absent reliance upon such a basis, I do not think this Court has the authority, by rule, to require trial judges to appoint counsel for dependent children facing commitment to treatment facilities. Cf. State v. Garcia, 229 So.2d 236, 238 (Fla.1969) (“The rules adopted by the Supreme Court are limited to matters of procedure, for a rule cannot abrogate or modify substantive law.”).

In addition, there are no statutory provisions for compensation of counsel appointed pursuant to the rule adopted by the majority. While section 39.0134, Florida Statutes (2002), provides that counties are to pay for court-appointed counsel for dependent children, this section applies only to counsel entitled to compensation “pursuant to a court appointment in a dependency proceeding pursuant to this chapter.” § 39.0134(1), Fla. Stat. (2002). The pre-commitment hearing required by the rule is not a “dependency proceeding” pursuant to chapter 39, Florida Statutes (2002), nor could a court appointment pursuant to the rule be considered a court appointment pursuant to chapter 39. Thus, this section does not apply.

Nor does there appear to be any other applicable statutory provision for compensation of attorneys appointed pursuant to the rule adopted by the majority. Section 29.001, Florida Statutes (2002), which requires counties to fund the costs of court-appointed counsel, expressly defines court-appointed counsel as “counsel appointed to ensure due process in criminal and civil proceedings in accordance with state and federal constitutional guarantees.” § 29.001(1), Fla. Stat. (2002). As noted above, the majority has identified no constitutional basis for mandating counsel in these cases; thus, thiá section does not apply. Nor would section 925.036, Florida Statutes (2002), apply, as it provides compensation only for counsel appointed in death cases and as special assistant public defenders.

Accordingly, I urge the Legislature to consider and rectify the disparity in statutory protections afforded to dependent children facing involuntary commitment under section 39.407(5) and children civilly committed under the Baker Act by amending section 39.407(5) to provide for the appointment and compensation of counsel. Until such time, I simply do not believe this Court can, by rule, require the appointment of counsel in these cases.

WELLS, J.,

dissenting.

I continue to dissent to the adoption of this rule for the same reasons expressed in my dissent in Amendment to the Rules of Juvenile Procedure, Fla. R. Juv. P. 8.350, 804 So.2d 1206 (Fla.2001).

The majority has now adopted a rale, which in material part was rejected by a vote of eighteen to seven by the committee which had the responsibility to first review this rule. As I stated in my earlier opinion, I have serious concerns about the practical ramifications of the rale that the majority now adopts in respect to the court-mandated counsel. I know of no authority for this Court to mandate the appointment of counsel by rule when there is no constitutional or statutory requirement for counsel. The majority has no evidentiary support for its statement, “There are multiple sources of experienced attorneys that can be tapped by judges to represent children in rule 8.350 proceedings.” Majority op. at 767. Nor does the majority have any sources of funds to pay such attorneys. Clearly, money appropriated by the Legislature for the guardian ad litem program cannot be properly redirected from that program without legislative approval.

I am concerned that this rule will be an overwhelming and frustrating burden for the dependency court judges, who will have an ongoing responsibility to search for attorneys in order to comply with this rule. A comparable situation was in the early 1980s when this Court attempted to find counsel for defendants in postconviction capital cases by recruiting a group of pro bono lawyers to perform these services. That became a great burden for the Court and the Bar, and frustrated the process due to the failure to obtain qualified counsel for all of those defendants through such a program.

I believe the lesson from that experience was that the only effective way that counsel can be made available is through the cooperation of the legislative and executive branches of state government for these types of situations. To date, neither of the other branches have been convinced of the need for such counsel.

Furthermore, I do not believe that mandating attorneys and then providing exceptions, as the majority’s rule does, is an acceptable procedure. Such an exception will be the subject of substantial litigation when a court proceeds under it, since this Court has now adopted a judicially created right to counsel.

Finally, as apparently the legislative and executive branches do, I have a continuing real question as to the need for this additional lawyer. There will now be a mandated court procedure in which the child has a lawyer, the guardian ad litem has a lawyer, the parents have a lawyer (often each parent has a lawyer), and the Department of Children and Families has a lawyer — in a situation which is intended to be nonadversarial. That does not seem to me the way this should work.

APPENDIX

RULE 8.350. PLACEMENT OF CHILD INTO RESIDENTIAL TREATMENT CENTER AFTER ADJUDICATION OF DEPENDENCY

(a) Placement.

(1) Any reference in this rule to a residential treatment center is to a residential treatment center or facility licensed under section 394.875, Florida Statutes, for residential mental health treatment. Any reference to hospital is to a hospital licensed under chapter 395, Florida Statutes, for residential mental health treatment. This rule does not apply to placement under sections 394.463 or 394.467, Florida Statutes.

(2) The placement of any child who has been adjudicated dependent for residential mental health treatment shall be as provided by law.

(3) Whenever the department believes that a child in its legal custody may require placement in a residential treatment center or hospital, the department shall arrange to have the child assessed by a qualified evaluator as provided by law and shall file notice of this with the court and all parties. Upon the filing of this notice by the department, the court shall appoint a guardian ad litem for the child, if one has not already been appointed, and may also appoint an attorney for the child. Both the guardian ad litem and attorney, if appointed, shall meet the child and shall have the opportunity to discuss the child’s suitability for residential treatment with the qualified evaluator conducting the assessment. Upon the completion of the evaluator’s written assessment, the department shall provide a copy to the court and to all parties. The guardian ad litem shall also provide a written report to the court and to all parties indicating the guardian ad litem’s recommendation as to the child’s placement in residential treatment and the child’s wishes.

(4) If the department seeks to place the child in a residential treatment center ‘ or hospital, the department shall immediately file a motion for placement of the child with the court. This motion shall include a statement as to why the child is suitable for this placement and why less restrictive alternatives are not appropriate and also shall include the written findings of the qualified evaluator. The motion shall state whether all parties, including the child, are in agreement.

(5) If the evaluator’s written assessment indicates that the child requires immediate placement in a residential treatment center or hospital and that such placement cannot wait for a hearing, then the department may place the child pending a hearing, unless the court orders otherwise.

(6) The guardian ad litem must be represented by an attorney at all proceedings under this rule, unless the guardian ad litem is acting as an attorney. If the department’s motion, the guardian ad li-tem’s report, or another party based on communication with the child indicates that the child does not agree with the department’s motion, then the court shall appoint an attorney to represent the child, if one has not already been appointed.

(7) Upon the fifing of a motion for placement, the court shall set the matter for a status hearing within 48 hours, ex-eluding weekends and holidays. The department shall timely provide notice of the date, time, and place of the hearing to all parties and participants.

(8) The child’s attorney or guardian ad litem shall notify the child of the date, time, and place of the hearing. No hearing shall proceed without the presence of the child’s guardian ad litem and attorney, unless excused by the court for good cause shown. Should the hearing occur in the absence of the guardian ad litem and attorney, upon request the court shall set the matter for an additional hearing within 24 hours, at which time the attorney and guardian ad litem shall be present.

(9) If the child appears at the status hearing not represented by an attorney, the court shall directly inquire of the child whether he or she disagrees with the motion for placement. If the child does not appear and is not represented by an attorney at the status hearing, the court shall diligently pursue all available information to determine if the child disagrees with the department’s motion for placement. If no party disagrees with the department’s motion at the status hearing, then the motion for placement may be approved by the court. However, if any party, including the child, disagrees, then the court shall set the matter for hearing within 10 working days.

(10) If counsel is not immediately available to represent the child, and the court determines that the child will be harmed if the hearing on placement is postponed, then the hearing may be held in the absence of counsel. The child shall be present at the hearing unless the court determines pursuant to subdivision (c) that a court appearance is not in the child’s best interest. In such circumstances, the child shall be provided the opportunity to express his or her views to the court by a method deemed appropriate by the court. Further, if counsel is not available at the time of the hearing, counsel shall be appointed as soon as practical thereafter and the court shall set an additional hearing at which time both counsel and the child shall be present.

(11) Hearing on Placement.

(A) At the hearing, the court shall consider, at a minimum, all of the following:
(i) based on an independent assessment of the child, the recommendation of a department representative or authorized agent that the residential treatment or hospitalization is in the child’s best interest and a showing that the placement is the least restrictive available alternative;
(ii) the recommendation of the guardian ad litem;
(iii) a case review committee recommendation, if there has been one;
(iv) the written findings of the evaluation and suitability assessment prepared by a qualified evaluator; and
(v) the views regarding placement in residential treatment that the child expresses to the court.
(B) All parties shall be permitted to present evidence and witnesses concerning the suitability of the placement.
(C) If the court determines that the child is not suitable for residential treatment, the court shall order the department to place the child in the least restrictive setting that is best suited to meet the child’s needs.

(b) Continuing Residential Placement Reviews.

(1) The court shall conduct a hearing to review the status of the child’s residential treatment plan no later than 3 months after the child’s admission to the residential treatment program. An independent review of the child’s progress toward achieving the goals and objectives of the treatment plan must be completed by a qualified evaluator and submitted to the court and all parties in writing at least 72 hours before the 3-month review hearing.

(2) Review hearings shall be conducted every 3 months thereafter, until the child is placed in a less restrictive setting. At each 3-month review hearing, if the child appears and is not represented by an attorney, the court shall directly inquire of the child whether he or she disagrees with continued placement. If the child does not appear and is not represented by an attorney, the court shall diligently pursue all information available to determine if the child disagrees with continued placement. If the court determines that the child disagrees with the continued placement, the court shall appoint an attorney for the child.

(3) If the court determines at any hearing that the child is not suitable for continued residential treatment, the court shall order the department to place the child in the least restrictive setting that is best suited to meet the child’s needs.

(c) Presence of Child. The child shall be present at all court hearings unless the court finds that the child’s mental or physical condition is such that a court appearance is not in the child’s best interest. In such circumstances, the child shall be provided the opportunity to express his or her views to the court by a method deemed appropriate by the court.

      . The Legislature amended section 39.407(5), Florida Statutes, in 2002. See ch. 2002-219, § 3, Laws of Fla. We have reviewed the amendments to section 39.407(5) and conclude that incorporating a precommitment hearing into rule 8.350 would not be inconsistent with the statutory scheme.

      . We stress that rule 8.350 does not address the issue of counsel for children in all dependency proceedings.

      . The majority of these children were between 13 and 16 years of age, with less than 10% under the age of 10 at the time of the commitment. During these years there were no children under the age of 5 in residential treatment.

      . The proviso to this appropriation contains the following language:
      Funds and positions are provided from General Revenue in Specific Appropriation 3201 through 3218 to enable the Guardian Ad Litem programs to provide "best interest representation” of children involved in dependency proceedings. Services shall be provided by Guardian Ad Litem staff, attorneys and trained volunteers using the Osceola County model currently operating in the Ninth Judicial Circuit Attorney Ad Li-tem Pilot Project.... The chief judges and/or trial court administrator of each judicial circuit may only contract for legal services to assist a Guardian Ad Litem program to provide best interest representation for a child or only under those circumstances when a judge determines it is in the best interests of a child to be represented by an attorney. Guidelines for the appointment of attorneys for children should be developed, including appropriate standards of practice for attorneys who represent children, to implement these appropriations.

        Id. at 4613. The statute governing the Ninth Judicial Circuit Attorney Ad Litem Pilot Project provides that "[t]he attorney ad litem's representation shall be limited to proceedings under this chapter only.” § 39.4086(2)(f), Fla. Stat. (2002).

      . §§ 394.451-.4789, Fla. Stat (2002).


author: LEWIS, J. WELLS, J., HARDING, Senior Justice,

text:
    PNR, INC., Petitioner, v. BEACON PROPERTY MANAGEMENT, INC., et al., Respondents.
    No. SC01-1507.
    Supreme Court of Florida.
    March 13, 2003.
    C. Vincent LoCurto of Brown, LoCurto & Robert, LLP, Fort Lauderdale, FL; and Brian F. LaBovick, Jupiter, FL, for Petitioner.
    David J. Maher and Lance A. Harke of Harke & Clasby LLP, Miami, FL; and Law Offices of Harry J. Ross, Boca Raton, FL, for Respondents.
    Raymond G. Ingalsbe, P.A., Palm Beach Gardens, FL; William C. Bielecky, P.A., and Mark S. Fistos of James, Hoyer, Newcomer & Smiljanieh, P.A., Tallahassee, FL, for the Academy of Florida Trial Lawyers, Amicus Curiae.
   LEWIS, J.

We have for review Beacon Property Management, Inc. v. PNR, Inc., 785 So.2d 564 (Fla. 4th DCA 2001), which expressly and directly conflicts with the decisions in Delgado v. J.W. Courtesy Pontiac GMC-Truck, 693 So.2d 602 (Fla. 2d DCA 1997), Suris v. Gilmore Liquidating, Inc., 651 So.2d 1282 (Fla. 3d DCA 1995), and Rollins, Inc. v. Heller, 454 So.2d 580 (Fla. 3d DCA 1984). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons stated herein, we quash the district court’s decision and remand with instructions to the district court to reconsider the judgment on Petitioner’s statutory cause of action.

BACKGROUND AND FACTS

While our decision in the instant case is directed solely to the district court’s interpretation of the Florida Deceptive and Unfair Trade Practices Act, § 501.201-.213, Fla. Stat. (2002) (“FDUTPA” or the “Act”), we provide a brief discussion of the salient facts. The instant action arises from a business dispute involving the tenancy of PNR, Inc., in a building owned by Ocean One North, Inc. (“Ocean One”). In September of 1994, PNR purchased a restaurant and was assigned a lease to the restaurant’s facility which was located on the third floor of a building owned by Ocean One. At the time of purchase, approximately eight years remained on the lease, and the lease contained a clause which provided an option to extend for an additional ten years. Ocean One is equally owned by Matt Giacomino, Ernest W. Willis, and their respective spouses. Willis and his spouse also jointly own Beacon Property Management, Inc. (“Beacon”).

Prior to PNR’s purchase of the restaurant, Beacon served as the property manager of the building in which the restaurant was located. The terms of the property management agreement between Beacon and Ocean One required Beacon to collect rents from tenants, pay bills on the property, provide an accounting to the owners, and act as a liaison between the owners and tenants. The written agreement did not require Beacon to maintain the premises, and actually expired by its own terms two months prior to PNR’s purchase of the restaurant. Under the provisions of the lease assigned to PNR, Ocean One was responsible for keeping the major structural components of the building in good repair.

Contractual obligations notwithstanding, Giacomino continuously referred PNR to Beacon for maintenance requests. The president of PNR testified at trial that Giacomino led him to believe that Beacon was responsible for maintenance issues such as roof leaks, tar leaks through the air conditioning system, and other adverse conditions that PNR experienced with increasing frequency from the time of purchase and possession of the real property. Giacomino testified during these proceedings that he indeed believed Beacon to be responsible for this type of maintenance on the premises.

PNR’s requests for maintenance were unattended, resulting in numerous building code violations, and, eventually, even the north wall of the building collapsed on July 1, 1995. The collapse forced PNR to cease restaurant operations for a period of seven months. The restaurant was eventually evicted from the premises and it terminated operations. Evidence adduced at trial showed that contemporaneous with the events of this case, Willis and Giacomino were embroiled in their own business dispute in which Giacomino accused Willis and Beacon of intentionally neglecting the building as part of a plan to extinguish his interest in Ocean One.

Following an eight-day trial, the jury returned a verdict against Willis and Beacon on all but one of PNR’s causes of action, including PNR’s claim that the methods employed in the failure of Ocean One, Willis, and Beacon to properly maintain the premises constituted unfair and deceptive trade practices under the FDUTPA. The jury awarded $1.2 million in damages, including $500,000 in punitive damages, against Willis, individually, and $540,000 in damages, including $140,000 in punitive damages, against Beacon. The Fourth District reversed, in pertinent part, the judgments based on the FDUTPA. See Beacon, 785 So.2d at 568. This review followed.

ANALYSIS

The only issue we address is whether the FDUTPA may be applied in a private cause of action arising from unfair or deceptive acts involving a single party in a single transaction or directed to a single contract. The Beacon court concluded that it cannot as a matter of law. According to the court below, the FDUTPA does not embrace single acts of iniquity or deception because the “operative words of section 501.204(1) are methods and practices,” which are defined as “ ‘a regular and systematic way of accomplishing something,’ ” and a “ ‘habitual or customary action or way of doing Something,’ ” respectively. Beacon, 785 So.2d at 568 (quoting American Heritage Dictionary of the English Language 1135, 1422 (3rd ed.)) (emphasis supplied). Thus, the district court set aside the judgments based on the FDUTPA, concluding that because the evidence in the instant case was limited to a single lease in question, and a single tenant, it did not imply the existence of a method or practice with regard to other leases and other tenants. See id.

The district court’s interpretation contravenes the plain meaning of the language of the FDUTPA. See St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982) (“While legislative intent controls construction of statutes in Florida, that intent is determined primarily from the language of the statute. The plain meaning of the statutory language is the first consideration.”) (citations omitted). Here, the district court simply excised the word “acts” from its rendition of the “operative words” of the FDUTPA. See § 501.204(1), Fla. Stat. (2002) (prohibiting “[ujnfair methods of competition ... and unfair or deceptive acts or practices in the conduct of any trade or commerce”) (emphasis supplied). In so doing, the district court focused its analysis solely on the words “method” and “practice.” However, when each of the terms designating proscribed conduct is afforded operation, the Florida Legislature’s intent to protect against misdeeds directed to a single party, as well as behavior directed to multiple parties, clearly emerges.

In rendering this analysis, we acknowledge that section 501.204(1) utilizes the word “acts” — plural. However, when considered with the other provisions of the FDUTPA, it is clear that the prohibition is broad enough to protect against instances of unfair or deceptive conduct as to a single party or under a single transaction or contract. See § 1.01(1), Fla. Stat. (2002) (providing that the plural includes the singular where the context of the statutory provision allows). Here there were “acts” which allegedly caused harm to a single claimant. The very provisions that outline the parameters for individual remedies under the FDUTPA are triggered by the commission of a single act. See § 501.211(1), Fla. Stat. (2002) (“[Ajnyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated ... this part.”) (emphasis supplied); see also § 501.211(2), Fla. Stat. (2002) (“[A] person who has suffered a loss as a result of a violation of this part ... may recover actual damages ....”) (emphasis supplied). Indeed, the FDUTPA is replete with references to “an act” — singular. See also §§ 501.2075 (providing civil penalties for the willful use of an unlawful “method, act, or practice”); 501.2077(2) (providing the same for violations involving senior citizens or handicapped persons); 501.2105(1) (governing attorney’s fees in “any civil litigation resulting from an act or practice involving a violation”); 501.212(1), Fla. Stat. (2002) (excepting “an act or practice” required or specifically permitted by law).

While we need not resort to extrinsic aids in construing the unambiguous provisions of the FDUTPA, see A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931), our conclusion is bolstered by contrasting the language of the Act against other statutory provisions in which the Florida Legislature has conditioned relief on the existence of a pattern of conduct. Specifically, to state a cause of action for certain unfair settlement practices in the insurance context, a complainant must show that the defendant committed or performed the act with “such frequency as to indicate a general business practice.” § 626.9641(1)0)8, Fla. Stat. (2002). No such language qualifies the private right of action provided under the FDUTPA.

The district court’s conclusion that the FDUTPA’s private right of action is only available to plaintiffs able to demonstrate multiple, violative acts against multiple parties or in multiple transactions runs contrary to the interpretation of the Act that has been applied in every appellate district in this State. In Delgado v. J.W. Courtesy Pontiac GMC-Truck, 693 So.2d 602 (Fla. 2d DCA 1997), the Second District reversed a trial court’s judgment on the pleadings in an action based upon the FDUTPA which involved a single party and a single transaction — the purchase of one automobile. See id. at 603-04. In its analysis of the case, the Delgado court stated that in passing the FDUTPA, the Florida Legislature intended to create a simplified statutory cause of action to provide additional substantive remedies to the citizens of this state to recover economic damages related to products or services purchased in a transaction infected with unfair or deceptive trade practices or acts. See id. at 606. The decision in Delgado is not an anomaly. District courts in the First, Third, Fourth, and Fifth Districts have likewise determined that a single act or transaction constitutes a sufficient basis for a FDUTPA action. We also acknowledge that while there may not be a consensus among the other states, numerous courts have determined that their trade practice statutes apply to single instances of unfair or deceptive conduct. See, e.g., Drybrough v. Acxiom Corp., 172 F.Supp.2d 366, 369 (D.Conn.2001) (determining that a single act may be the basis for a claim under state trade practice law); Catrett v. Landmark Dodge, Inc., 253 Ga.App. 639, 560 S.E.2d 101, 105 (2002) (same); Breckenridge v. Cambridge Homes, Inc., 246 Ill.App.3d 810, 186 Ill.Dec. 425, 616 N.E.2d 615, 623 (1993) (same).

The dissents would simply discharge jurisdiction in the instant matter and permit the incorrect statement of the principle of law to be perpetuated directly contrary to decisions of other district courts of appeal. As discussed above, the point of law announced by the district court in Beacon cannot coexist with decisions from courts in other Florida appellate districts. Our constitutional responsibility to resolve this interdistrict conflict, and ensure the consistent application of the law throughout this state, see Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla.1988), dictates that we address the very real and direct conflict created by the Beacon court’s pronouncement of a novel statutory interpretation that directly contravenes the interpretation undergirding numerous decisions in other districts. Discharge of jurisdiction in the instant matter would permit the further advancement of an incorrect principle of law — a troubling prospect when one considers that the Beacon court’s erroneous interpretation of the FDUTPA has already been cited as direct authority by another district court in Keech v. Yousef, 815 So.2d 718 (Fla. 5th DCA 2002). See id. at 719 (following the Fourth District’s statement that the FDUTPA requires more than an isolated act of misconduct and observing that the plaintiff had proved “only one act that fell under DUTPA rather than showing ... a pattern of prohibited practices, as required”).

Based on the foregoing, we conclude that the FDUTPA applies to private causes of action arising from single unfair or deceptive acts in the conduct of any trade or commerce, even if it involves only a single party, a single transaction, or a single contract. An unfair practice is “one that ‘offends established public policy’ and one that is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’ ” Samuels, 782 So.2d at 499 (quoting Spiegel, Inc. v. Fed. Trade Comm’n, 540 F.2d 287, 293 (7th Cir.1976)); see Millennium Communications & Fulfillment, Inc. v. Office of the Attorney Gen., 761 So.2d 1256, 1263 (Fla. 3d DCA 2000) (stating that deception occurs if there is a “‘representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.’ ”) (quoting Southwest Sunsites, Inc. v. Fed. Trade Comm’n, 785 F.2d 1431, 1435 (9th Cir.1986)). We quash the decision of the district court and remand the case for further consideration consistent with the principles set forth herein.

It is so ordered.

ANSTEAD, C.J., PARIENTE and QUINCE, JJ., and SHAW, Senior Justice, concur.

WELLS, J., dissents with an opinion.

HARDING, Senior Justice, dissents with an opinion, in which WELLS, J., concurs.

WELLS, J.,

dissenting.

My first preference in this case would be to exercise our discretion and discharge jurisdiction since the factual circumstances of this case and the conflict cases are so different that the cases can be plainly distinguished.

Since the majority keeps this case, however, I dissent from quashing the decision of the Fourth District. This is a breach of contract case, and I agree with the Fourth District that the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) is not intended to convert every lease breach into a claim under the Act.

I have seriously considered the majority’s footnote 2 in light of the facts alleged in this case. I continue to conclude that what is set forth in the majority opinion as the facts of this case are, in sum, a breach of a lease contract. I do not see how the district courts or the trial courts are to differentiate between which breach of lease cases state a claim under FDUTPA and which do not. I continue my concern that the practical effect of this decision will be to convert every breach of lease claim into a claim under FDUTPA, though I read footnote 2 to mean that this is not what the majority intends.

HARDING, Senior Justice,

dissenting.

I would discharge jurisdiction as having been improvidently granted. I do not find any conflict which would sustain this court’s retaining jurisdiction.

WELLS, J., concurs.

      . See Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 499 (Fla. 4th DCA 2001) (reversing trial court’s dismissal of a FDUTPA claim stemming from a single automobile purchase); Davich v. Norman Bros. Nissan, Inc., 739 So.2d 138, 141 (Fla. 5th DCA 1999) (vacating summary judgment on a FDUTPA claim based on a single transaction in which an automobile dealer allegedly concealed damage to the paint finish of a car purchased by the plaintiff); Suris v. Gilmore Liquidating, Inc., 651 So.2d 1282, 1283 (Fla. 3d DCA 1995) (reversing a directed verdict on a FDUTPA claim stemming from a single transaction in which the dealer allegedly misrepresented the price of the car being sold and the value of the consumer's trade-in); Urling v. Helms Exterminators, Inc., 468 So.2d 451, 453-54 (Fla. 1st DCA 1985) (reversing a directed verdict on a FDUTPA claim based on a single transaction in which a termite inspector allegedly phoned in a single false inspection report).

      . Contrary to the position articulated in the dissenting opinion of Justice Wells, this opinion does not operate to convert every breach of contract or breach of lease case into a claim under the Act. Indeed, such a construction would be precluded by the FDUTPA, which only reaches conduct that is unfair or deceptive as judged by controlling case law. To the extent an action giving rise to a breach of contract or breach of lease may also constitute an unfair or deceptive act, such a claim is and has always been cognizable under the FDUTPA. Our holding today merely remands the case to the district court for consideration under appropriate law and changes nothing with regard to such issue.


author: WELLS, J.

text:
    HUMANA WORKER’S COMPENSATION SERVICES, et al., Petitioners, v. HOME EMERGENCY SERVICES, INC., Respondent.
    No. SC02-1206.
    Supreme Court of Florida.
    March 13, 2003.

      Debra Potter Klauber of Haliczer Pettis, P.A., Fort Lauderdale, FL, for Petitioners.
    Evan J. Langbein of Langbein & Lang-bein, P.A., Aventura, FL; Richard A. Friend, Miami, FL; and Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, FL, for Respondent.
   WELLS, J.

We have for review the decision in Home Emergency Services, Inc. v. Humana Worker’s Compensation, 815 So.2d 665 (Fla. 3d DCA 2002), which certified conflict with the decision in Norris v. Colony Insurance Co., 760 So.2d 1010 (Fla. 4th DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We quash the decision below and approve the decision in Norris.

Humana Worker’s Compensation Services (Humana), is the insurer of Home Emergency Services, Inc. (HES) under a two-part insurance policy. Part One of the policy, entitled ‘Workers Compensation Insurance,” provides that Humana will pay benefits required of HES by the workers’ compensation law and will defend any claim against HES for such benefits. Part Two of the policy, entitled “Employers Liability Insurance,” states in part:

A. How This Insurance Applies
This employers liability insurance applies to bodily injury by accident or bodily injury by disease. Bodily injury includes resulting death.

While this policy was in effect, an employee of HES, Alberto Milian, was injured when he fell from a ladder during the course of his employment. Milian received workers’ compensation benefits, which were paid pursuant to Part One of HES’s policy. HES then agreed to maintain the ladder in its possession for Milian, who intended to pursue a claim against the ladder’s manufacturer and distributor. The ladder was subsequently misplaced or destroyed. When Milian later filed suit against the manufacturer and distributor for product liability, he also sued HES for negligent spoliation of evidence. Milian’s complaint contained two counts against HES, one alleging that HES breached a contractual duty to maintain the evidence and a second alleging breach of a statutory duty. The complaint averred that the contractual duty arose from HES’s agreement to maintain the ladder, while the statutory duty arose from section 440.39(7), Florida Statutes (1995), which imposes a duty on an employer to cooperate with an employee in the prosecution of claims and potential claims against third-party tortfeasors. See General Cinema Beverages of Miami, Inc. v. Mortimer, 689 So.2d 276 (Fla. 3d DCA 1995) (holding section 440.39(7) imposes duty to preserve evidence).

Upon receipt of Milian’s complaint, HES requested coverage and defense from Hu-mana pursuant to Part Two of its policy, the employers Lability insurance portion. Taking the position that the policy did not cover claims for spoliation of evidence, Hu-mana filed a petition for declaratory relief against HES to establish its coverage obligations. Thereafter, Humana and HES each filed motions for summary judgment. The trial court granted summary judgment in favor of Humana, concluding that Milian’s spoliation claim against HES was not a “bodily injury” claim covered by the policy.

HES appealed to the Third District, which reversed and held that the spoliation claim was covered by Part Two of the policy. Home Emergency Services, 815 So.2d at 666. In reaching its conclusion that “there is coverage for a spoliation of evidence claim when the policy provides that the insurer will ‘pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury,’ ” id., the court referred to its previous analysis in the related case of Lincoln Insurance Co. v. Home Emergency Services, Inc., 812 So.2d 483 (Fla. 3d DCA 2001) (en banc). That case was predicated on the same underlying facts: when sued by Mili-an, HES also requested coverage from its commercial general liability carrier, Lincoln Insurance Company (Lincoln), under a policy covering “damages because of ‘bodily injury’ ” if “caused by an ‘occurrence,’ ” which was defined as an “accident.” Like Humana, Lincoln filed a declaratory action to determine its coverage obligations. In Lincoln’s case, the trial court entered summary judgment in favor of HES. But on appeal, the Third District, sitting en banc, held that the claim for spoliation of evidence fell within the scope of the Lincoln policy, reasoning that Mili-an’s fall from the ladder was an “occurrence” and, “[rjeading the policy favorably to the insured ... Milian’s claim for spoliation of evidence [was] properly viewed as being ‘because of bodily injury.’ ” Lincoln, 812 So.2d at 438.

In addition to relying upon the Lincoln analysis, the Third District certified conflict between its decision in Home Emergency Services and the Fourth District’s decision in Norris v. Colony Insurance Co., 760 So.2d 1010 (Fla. 4th DCA 2000). In Norris, the Fourth District held that negligent spoliation of evidence was not covered by an insurance policy containing language which required that bodily injury be caused by an “occurrence” which was defined as an “accident.” See id. at 1011-12. The court emphasized that the “basis of a cause of action for spoliation of evidence [is] ‘an intangible and beneficial interest in the preservation of the evidence’ ” and concluded that “this occurrence, the destruction of evidence, did not result in bodily injury.” Id. at 1012 (quoting DiGiulio v. Prudential Property & Cas. Ins. Co., 710 So.2d 3 (Fla. 4th DCA 1998)).

Humana sought discretionary review by this Court on the basis of the certified conflict between the Third and Fourth District’s decisions. Humana urges this Court to adopt the holding in Norris and conclude that a spoliation claim does not fall within the plain language of bodily injury coverage because such claims seek damages other than for bodily injury by accident. HES counters that the policy language does not require that the bodily injury be the only contributing cause of the insured’s potential liability or that the damages claimed be of a particular type. Noting that Milian will only prevail in his spoliation claim against HES if he proves the viability of the underlying claim for bodily injury, HES argues that if Milian prevails in the spoliation claim it will be “because of’ the underlying bodily injury, coupled with the loss of the ladder.

We agree with Humana that the plain language of this policy does not provide coverage for a claim of negligent spoliation of evidence. To determine whether there is coverage, as our threshold examination we must construe Section A of Part Two, the provision that explains “How This Insurance Applies.” In this examination we are bound by rules of construction which we have long applied, the foremost of which is that insurance contracts must be construed in accordance with their plain language. See Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000); Prudential Property & Cas. Ins. Co. v. Swindal, 622 So.2d 467, 470 (Fla.1993). Applying this rule to this coverage provision, the issue is then whether this claim for spoliation of evidence is a claim for “bodily injury by accident.” We conclude that it plainly is not because what is claimed here as the “accident” is the negligent loss of the ladder. That accident did not result in bodily injury but rather in the ladder not being available as evidence in a bodily injury claim.

Negligent spoliation of evidence is a tort claim based on a defendant’s breach of a duty to preserve evidence. The damage that flows from such a breach is the resulting inability to prove a cause of action. Milian’s spoliation claim seeks compensation not for the bodily injury he sustained in falling from the ladder but, rather, for his loss of a probable expectancy of recovery in the underlying suit.

We therefore hold that this policy applying to “bodily injury by accident” does not provide coverage for claims against an insured for negligent spoliation of evidence. Our holding here is consistent with the Fourth District decision in Norris as well as decisions of other jurisdictions. See Johnson v. Evan Hall Sugar Coop., Inc., 836 So.2d 484, 486 (La.Ct.App.2002) (holding spoliation claim was not derived from plaintiffs bodily injuries but rather from “completely separate incident” where evidence was destroyed); Fremont Casualty Ins. Co. v. Ace-Chicago Great Dane Corp., 317 Ill.App.3d 67, 250 Ill.Dec. 624, 739 N.E.2d 85, 91-92 (2000) (holding damage suffered in spoliation claim is inability to prove underlying action, which does not fall within plain and ordinary meaning of term “bodily injury”). Accordingly, we quash the decision below and remand to the district court for proceedings consistent with this decision.

It is so ordered.

ANSTEAD, C.J., and PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

      . The Third District reversed the summary judgment, however, and remanded for entry of judgment in favor of Lincoln on the basis of an applicable exclusion within the Lincoln policy. Lincoln, 812 So.2d at 439.


author: PER CURIAM.

text:
    Leon ADDERLY, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-258.
    Supreme Court of Florida.
    March 13, 2003.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Michael J. Neimand, Assistant Attorney General, Bureau Chief, and Frank J. In-grassia, Assistant Attorney General, Fort Lauderdale, FL, for Respondent.
   PER CURIAM.

We originally accepted jurisdiction to review State v. Adderly, 803 So.2d 760 (Fla. 3d DCA 2001), pursuant to article V, section 3(b)(3), of the Florida Constitution. After further consideration, we have determined that jurisdiction was improvidently granted. Accordingly, this case is hereby dismissed.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

ANSTEAD, C.J., dissents.


text:
    John Earl HUBBARD, Petitioner, v. STATE of Florida, Respondent.
    No. SC00-2350.
    Supreme Court of Florida.
    March 13, 2003.
    R. Mitchell Prugh of Middleton & Prugh, P.A., Melrose, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Ronald Napolitano, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

We originally accepted review of Hubbard v. State, 773 So.2d 87 (Fla. 2d DCA 2000), pursuant to article V, section 3(b)(3), of the Florida Constitution. After further consideration, and in light of our recent decision in Burgess v. State, 831 So.2d 137 (Fla.2002), we have determined that jurisdiction was improvidently granted.

Accordingly, this case is hereby dismissed.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.