text:
    D.B. v. STATE of Alabama.
    CR-01-0616.
    Court of Criminal Appeals of Alabama.
    Jan. 7, 2003.
    Rehearing Denied Feb. 21, 2003.

      Sandra Starne Hutchinson, Anniston; and Fred Lawton III, Anniston, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for ap-pellee.
   SHAW, Judge.

Pursuant to a plea agreement with the State, the appellant, D.B., pleaded guilty to one count of rape in the first degree, a violation of § 13A-6-61(a)(l), Ala.Code 1975; one count of sodomy in the first degree, a violation of § 13A-6-63(a)(l), Ala.Code 1975; and one count of burglary in the first degree, a violation of § 13A-7-5(a)(1), Ala.Code 1975. He was sentenced in accordance with the plea agreement to 25 years’ imprisonment for each conviction, the sentences to run concurrently. Before pleading guilty, he expressly reserved the right to appeal the trial court’s denial of three pretrial motions.

The record reflects that on April 7, 2000, delinquency petitions were filed against the appellant for rape, sodomy, and burglary. On May 10, 2000, upon motion of the State, the juvenile court transferred the cases to the circuit court for the appellant to be prosecuted as an adult. The appellant filed a notice of appeal from the transfer order. On July 27, 2000, while the appeal from the transfer order was pending in this Court, a Calhoun County grand jury returned three indictments against the appellant for the rape, sodomy, and burglary charges that were the subject of the transfer order. On August 17, 2000, the appellant orally moved to stay the proceedings in the circuit court pending the outcome of his appeal from the transfer order; the circuit court granted the motion. In an opinion issued on September 29, 2000, this Court affirmed the transfer order. See D.B. v. State, 796 So.2d 1144 (Ala.Crim.App.2000). The Alabama Supreme Court denied certiorari review, and a certificate of judgment was issued on April 27, 2001. On December 6, 2001, the appellant pleaded guilty to the charges in the indictments.

The rape, sodomy, and burglary arose out of one incident that occurred on May 3, 1997, at the residence of T.D. in Calhoun County. The appellant was T.D.’s next-door neighbor and was a suspect in the case from the beginning. However, the appellant was not initially arrested for the crimes, apparently because there was little or no evidence connecting him to the crimes. On July 7, 1999, the appellant pleaded guilty to two counts of reckless endangerment, violations of § 13A-6-24, Ala.Code 1975, for an incident that occurred on November 12, 1998, unrelated to the rape, sodomy, and burglary. The appellant was placed on two years of supervised probation for the reckless-endangerment convictions, and, on October 19, 1999, a DNA mouth swab was taken from the appellant. Subsequent testing revealed that the appellant’s DNA matched semen found on a blanket at T.D.’s residence. The appellant was then charged with the rape, sodomy, and burglary.

I.

The appellant first contends that the trial court erred in denying his motion for funds to hire a DNA expert to independently test the blanket found at the scene of the crimes. He argues that, although his family provided funds for him to retain trial counsel, the circuit court should have considered him to be indigent and should have granted him funds to obtain a DNA expert because, he says, “there is a possibility that the blanket could contain DNA from another individual.” (Appellant’s brief at p. 22.) The appellant concedes in his brief to this Court that “he had a prior consensual sexual relationship with the victim” and that, therefore, his DNA may very well have been on the blanket, but he maintains that independent testing of the blanket by his own DNA expert may have revealed that the blanket also contained the “DNA of the actual perpetrator.” (Appellant’s brief at pp. 21-22.)

We agree with the appellant that “the fact that a friend or relative pays for an indigent defendant’s counsel should not be considered in determining whether the defendant is entitled to funds for expert assistance,” Ex parte Sanders, 612 So.2d 1199, 1201 (Ala.1993), and that the record indicates that the appellant was, in fact, indigent. However, nothing in the record suggests that the trial court did not consider the appellant to be indigent when it denied his motion for funds. The mere fact that the appellant was indigent did not automatically entitle him to funds for expert assistance.

“[I]n order for an indigent defendant to be entitled to funds with which to hire an expert, the defendant must demonstrate a need for the funds.” Smith v. State, 639 So.2d 543, 550 (Ala.Crim.App.1993).

“[A] defendant, in order to be entitled to funds to pay for an expert, must show more than a mere possibility that he or she will receive useful assistance from the expert. Rather, the defendant must show a reasonable probability that the expert would aid in the defense and that the denial of an expert to assist at trial would result in a fundamentally unfair trial.”

Dobyne v. State, 672 So.2d 1354, 1357 (Ala.1995). “To meet this standard, the indigent defendant must show, with reasonable specificity, that the expert is absolutely necessary to answer a substantial issue or question raised by the state or to support a critical element of the defense.” Ex parte Moody, 684 So.2d 114, 119 (Ala.1996). The State does not have to pay for expert assistance if an indigent defendant offers “ ‘little more than undeveloped assertions that the requested assistance would be beneficial.’ ” Ex parte Moody, 684 So.2d at 119, quoting Caldwell v. Mississippi 472 U.S. 320, 323, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

In this case, the appellant failed to show a reasonable probability that a DNA expert would aid in his defense and that the denial of a DNA expert would have resulted in a fundamentally, unfair trial. He offered nothing more than the mere possibility that independent testing of the blanket would reveal that the blanket contained the DNA of another person. Therefore, the trial court did not err in denying the appellant’s motion for funds to hire a DNA expert.

II.

Second, the appellant contends that the trial court erred in denying his motion to suppress the DNA evidence because, he says, taking the DNA sample from him while he was on probation for the reekless-endangerment convictions was an unlawful search and seizure. Although not entirely clear, the appellant appears to argue that this Court’s holding in Hammonds v. State, 717 So.2d 750 (Ala.Crim.App.1999), aff'd, 777 So.2d 777 (Ala.2000), that DNA samples taken pursuant to §§ 36-18-24 and 36-18-25, Ala.Code 1975, did not violate the Fourth Amendment, is not applicable to his case because, he says, the holding in Hammonds was limited to the taking of DNA samples from" those persons convicted of felonies and did “not address the issue whether the taking of DNA evidence from a probationer, on probation for a misdemeanor, is proper.” (Appellant’s reply brief at p. 7.) This argument is meritless. .

Section 36-18-25, Ala.Code 1975, provides, in part:

“(a)- All persons convicted of a criminal offense as set out in Section 36-18-24 shall, when requested by the director [of the Alabama Department of Forensic Sciences] submit to the taking of a DNA sample or samples as may be specified by the director, provided, however, the director shall promulgate such rules and regulations as may be necessary for the purposes of ensuring that DNA samples are collected in a medically approved manner.
“(b) As of May 6, 1994, all persons .serving any sentence of probation for any of the offenses set out in Section 36-18-24 shall, when requested by the director, submit to the taking of a DNA sample or samples as specified by the director. Upon the refusal of any such person to so submit the sentencing court shall order such submission as a mandatory condition of probation.
“(c) As of May 6, 1994, all persons convicted of any of the offenses set out in Section 36-18-24 shall be ordered to submit to the taking of a DNA sample or samples as specified by the director as a mandatory condition of any term of probation or suspended sentence which may be imposed by the sentencing court.
“(d) As of May 6, 1994, all persons convicted for any offense set out in Section 36-18-24 and under any sentence of confinement to any incarceration facility, shall, when requested by the director, submit to the taking of a DNA sample or samples as specified by the director. Upon the refusal of any such person to so submit, the custodian of the incarceration facility shall require such submission as a mandatory condition of any temporary, partial or limited release, including, but not limited to, work release, furlough, or other incentive release.
“(e) As of May 6, 1994, all persons convicted of any of the offenses set out in Section 36-18-24, shall be ordered by the sentencing court to submit to the taking of a DNA sample or samples as may be specified by the director as part of the sentence to be imposed.”

Section 36-18-24, Ala.Code 1975, provides, in pertinent part:

“The director is hereby authorized and empowered to create and establish a DNA database ...:
“The DNA database shall contain DNA records which the director shall deem necessary for the implementation of this article, and also shall contain DNA records of:
“(a) Persons convicted after May 6, 1994 for a felony offense.
“(b) Persons confined as of May 6, 1994 under a sentence of imprisonment or involuntary incarceration or confinement in a prison, jail, or other incarceration facility as a result of any felony conviction.
“(c) Persons convicted after May 6, 1994, of any offense contained in Chapter 6, Title 13A, or as the same may be hereafter amended.
“(d) Persons convicted after May 6, 1994, of any attempt, solicitation, or conspiracy to commit any offense contained in Chapter 6, Title 13A, or as the same may be hereafter amended.
“(e) Persons convicted or sentenced after May 6, 1994, for any of the offenses enumerated above and serving a sentence of probation, suspended sentence, or other sentence or judgment not requiring immediate incarceration.”

(Emphasis added.)

In Hammonds, this Court stated:

“Hammonds argues that the trial court erred in not suppressing the DNA evidence obtained from the blood sample retrieved from him in 1996. Hammonds argues that the blood sample was taken in violation of his Fourth Amendment rights against an unlawful search and seizure. Specifically, Hammonds contends that the blood sample, which was drawn by Holman Prison personnel pursuant to the CODIS requirements [Alabama combined DNA indexing system program, § 36-18-20 et seq.] and not pursuant to any warrant, was taken outside the administrative protocols created by the Alabama Department of Forensic Sciences (ADFS) for the taking and indexing of such samples from prison inmates, and was thus taken in violation of his Fourth Amendment rights....
“The record reflects that, after the ADFS determined that it was likely that the perpetrator was a black male, the Dothan Police investigators discovered that Hammonds was one of two black males who had delivered furniture to the deceased’s townhouse the day before the murder. Further investigation revealed that, subsequent to the murder, Ham-monds had been convicted for attempted murder in an unrelated case, that he was being confined at Holman Prison, and that he had no blood sample on file in the Alabama DNA database. As a result of a request by the Dothan police, John Hicks, with the authorization of Carlos Rabren, the director of ADFS, requested that Holman Prison officials draw a sample of Hammonds’s blood to include in the CODIS database and asked that the sample be sent to their Birmingham laboratories as soon as it was taken. The sample was drawn on May 6, 1996. Hammonds cooperated and did not resist or attempt to refuse to allow a blood sample to be drawn.
“Provisions for the implementation of an Alabama DNA database were enacted by the Alabama Legislature in 1994 and are codified in §§ 86-18-20 through -39, Ala.Code 1975. The Legislature declared
“ ‘That the Alabama Department of Forensic Sciences should be authorized and empowered to analyze, type, and record any and all genetic markers contained in or derived from DNA and to create a statewide DNA database system for collection, storage, and maintenance of genetic identification information as the same may pertain to the identification of criminal suspects.’
“ § 36-18-20(h), Ala.Code 1975.
“The act authorized the director of the ADFS to:
“ ‘(1) Collect, accept, analyze, test and store DNA samples.
“ ‘(2) Create, maintain, or exchange DNA records.
“ ‘(3) Analyze, type, and record any and all genetic markers contained in or derived from DNA and to provide for the collection, storage, and maintenance of genetic identification information as the same may pertain to the identification or exclusion of criminal suspects.’
“§ 36-18-22, Ala.Code 1975. DNA testing was to be ‘conducted in a manner that is compatible with procedures specified by the FBI.’ § 36-18-23, Ala.Code 1975. FBI protocols have no bearing on how samples are taken, but address only testing procedures.
“One of the primary purposes for the establishment of this statewide DNA database was stated as follows:
“ ‘Assisting federal, state, county, municipal, or local criminal justice and law enforcement officers or agencies in the putative identification, detection, or exclusion of persons who are the subjects of investigations or prosecutions of sex related crimes, other violent crimes, or other crimes in which biological evidence is received or recovered.’
“ § 36-18-24(a), Ala.Code 1975.
“According to § 36-18-24, AUuCode 1975,
“ ‘The DNA database shall contain DNA records which the director shall deem necessary for the implementation of this article, and also shall contain DNA records of:
“ ‘(a) Persons convicted after May 6,1994 for a felony offense.
“ ‘(b) Persons confined as of May 6, 1994, under a sentence of imprisonment or involuntary incarceration or confinement in a prison, jail, or other incarceration facility as a result of any felony conviction.’
“This provision included Artez Ham-monds. According to § 36-18-25(a), Ala.Code 1975,
“ ‘All persons convicted of a criminal offense as set out in Section 36-18-24 shall, when requested by the director, submit to the taking of a DNA sample or samples as may be specified by the director, provided, however, the director shall promulgate such rules and regulations as may be necessary for the purposes of ensuring that DNA samples are collected in a medically approved manner.’
“(Emphasis added [in Hammonds ].)
“The issues raised by Hammonds concerning the effect state administrative protocols have on an inmate’s constitutional rights and whether Hammonds had a constitutional right to refuse to submit to having his blood drawn for the purposes of adding to the CODIS database, are all matters of first impression in the State of Alabama.
“In denying Hammonds’s motion to suppress, the trial court wrote:
“ ‘[Hammonds] does not challenge the constitutionality of this statute. It is axiomatic that “... the Constitution confers on the legislature plenary power to legislate except as restricted by the Constitution, State or federal.” Ex parte Foshee, 246 Ala. 604, 21 So.2d 827, 829, (1945). Additionally, courts are to construe statutes as constitutional, where possible. Decatur Laboratory, Inc. v. Sizemore, 564 So.2d 976, 977 (Ala.Civ.App.1990).
“ ‘Instead, [Hammonds] raises a constitutional challenge as to the application of the statute to him. [Ham-monds] argues that the manner in which his blood was taken violates his Fourth Amendment right to be free from an unlawful search and seizure. Further, [Hammonds] contends that the statute provides for a right of refusal, about which he was not notified.
“ ‘No Alabama cases have been cited to this Court, nor none found, which address Alabama’s CODIS Statute. This appears to be an issue of first impression in Alabama. However, numerous Federal Courts have addressed the Fourth Amendment issue as it relates to similar CODIS statutes in neighboring states.
“ ‘In Jones v. Murray, 962 F.2d 302, 307 (4th Cir.1992), cert. denied, 506 U.S. 977. 113 S.Ct. 472. 121 L.Ed.2d 378 (1992), the Court upheld a similar Virginia statute against a Fourth Amendment challenge, stating:
“ ‘ “Thus, in the case of convicted felons who are in custody of the Commonwealth, we find that the minor intrusion caused by the taking of a blood sample is outweighed by Virginia’s interest, as stated in the statute, in determining inmates’ ‘identification characteristics specific to the person’ for improved law enforcement.”

“ “While the Court in Jones, supra, found that the taking of inmate blood was a search, no probable cause or individualized suspicion was needed.

“ ‘This same conclusion was reached in Vanderlinden v. State of Kansas, 874 F.Supp. 1210 (D.Kan.1995), where inmates challenged a Kansas CODIS statute on Fourth Amendment grounds. Also, see Kruger v. Erickson, 875 F.Supp. 583 (D.Minn.1995), in which the Court was called upon to address a Fourth Amendment challenge to a Minnesota CODIS statute. The Court opined:

“ ‘ “Withdrawal of petitioner’s blood here constituted a search and seizure; however, it was reasonable. The court concludes that the officials were ‘justified in requiring petitioner to submit to the test.’ The statute authorizing the test serves the legitimate governmental interest of assisting investigation and prosecution of sex crimes. The need to search here outweighs the minimal invasion which occurred. The manner in which officials withdrew petitioner’s blood was reasonable.”
“ ‘Also, see Rise v. State of Oregon, 59 F.3d 1556 (9th Cir.1995), cert. denied 517 U.S. 1160, 116 S.Ct. 1554, 134 L.Ed.2d 656 (1996), and Boling v. Romer, 101 F.3d 1336 (10th Cir.1996) for identical holdings.
“ ‘Other courts have upheld these statutes from a Fourth Amendment constitutional attack under a different approach. In Jones v. Murray, 763 F.Supp. 842 (W.D.Va.1991), and State of Washington v. Olivas, 122 Wash.2d 73, 856 P.2d 1076, (1993), DNA statutes were upheld on the basis of a “special needs” exception to the Fourth Amendment requirement.
“ ‘In the case sub judice, an argument can be made that officials possessed, at the very least, individualized suspicion. The testimony reveals that Larry Huys [from the Alabama Department of Forensic Sciences] performed a statistical evaluation on the unknown tissue sample and discovered that the suspect was more likely to be black than white. This information was reported to Dothan [police] officer Bobby Sorrells. Prior to this time, Dothan Police had submitted samples of white suspects. Sergeant Sorrells reviewed the file for black suspects and learned that [Ham-monds] had been to the deceased’s townhouse in close proximity to the time of her death. Sergeant Sorrells also learned that [Hammonds] was in custody of the Board of Corrections for similar conduct. He, then, contacted the Department of Corrections and was informed that [Hammonds’s] blood had not been drawn for DNA analysis and was not in the databank. Sergeant Sorrells requested that the director order [Hammonds] to submit to a DNA test as provided by § 36-18-25 of the statute.
“ ‘[Hammonds] places great emphasis on a perceived “right of refusal.” This right of refusal is perhaps ephemeral. The statute is clear and its language mandatory that all persons convicted of or confined for felonies after May 6, 1994, shall submit to the taking of a DNA sample. Subsections (b) and (d) of § 36-18-25 address situations involving a possible refusal by the inmate to submit. Pursuant to subsection (b) there can be no refusal. If the person is serving any sentence of probation and refuses to submit to the test, “... the sentencing court shall order such submission as a mandatory condition of probation.” Again, in subsection (d), the language indicates that the inmate “shall submit,” and if he refuses, he will not be eligible for any incentive release.
“ ‘This Court can rely on guidance from the case of Gilbert v. Peters, 55 F.3d 237, 239 (7th Cir.1995). The Gilbert case upholds an Illinois CODIS statute from constitutional attack on Ex Post Facto grounds. The Court states:
“ ‘ “Finally, plaintiffs suggest that under the terms of the statute, which provides that blood samples are to be collected ‘prior to final discharge, parole, or release,’ they are subject to being held in prison past their release date. The Illinois' Supreme Court’s recent decision in Doe v. Gainer, 162 Ill.2d 15, 204 Ill.Dec. 652, 642 N.E.2d 114 (1994), cert. denied, 513 U.S. 1168, 115 S.Ct. 1139, 130 L.Ed.2d 1099 (1995), interpreting this language as a timing mechanism rather than an enforcement provision (in other words, requiring an inmate to submit a blood specimen while still in prison rather than after his release), is binding on this Court and forecloses plaintiffs argument.”
“ ‘It is the opinion of this Court that Alabama’s statute makes it mandatory that inmates submit to the DNA testing and any language suggesting a refusal is “a timing mechanism rather than an enforcement provision”; that is, the inmate shall provide the sample before he is released from prison. Section 36-18-20 declares:
“ ‘ “The provisions of this article are to be liberally construed so as to accomplish these purposes and to promote the same which are hereby declared to be the public policy of this state.”
“ ‘To allow inmates to decide whether or not to submit to the test would, in effect, have “the tail wagging the dog,” and would defeat the purpose of the statute.
“ ‘Therefore, [Hammonds’s] arguments regarding Fourth Amendment claims and a right of refusal are misplaced. This Court finds, as numerous Federal Courts have found, that the taking of [Hammonds’s] blood is outweighed by Alabama’s interest in rapidly identifying repeat or habitually dangerous criminals.
“ ‘Lastly, [Hammonds] argues that the Department of Forensic Sciences violated its own rules and regulations in administering the DNA testing of [Hammonds’s] blood. Implicit in this argument is the suggestion that the manner in which [Hammonds’s] blood was taken was unreasonable. This notion is intertwined in [Hammonds’s] Fourth Amendment claim as well.
“ ‘The evidence reveals that [Ham-monds] was already imprisoned at the time the CODIS statute took effect. The Department of Forensic Sciences was delegated the authority to implement the program. In order to collect all inmate samples, the Department opted to take samples at intake and/or pre-release processing. At the time the request was made to take [Ham-monds’s] blood, he did not fall within either category. A special request was made for [Hammonds’s] sample. According to Mr. Huys and Mr. Hicks, [Hammonds] was the first to be tested by specific request rather than normal intake and/or pre-release processing. The Department also performed the DNA analysis rather than send the sample to contractor, Genetic Designs. This process was atypical.
“ ‘What is missing from this analysis is the role that the Department of Forensic Sciences must take pursuant to state law. Section 36-18-2 establishes the duties of the Department, which include the following:
“ ‘ “[The Department] shall cooperate with the coroners, sheriffs, and other police officers in Alabama in their investigations of crimes and deaths from unlawful, suspicious, or unnatural causes. The director shall within his discretion visit the scene of any crime in the state for the purpose of securing evidence for the state. The director shall furnish a certified copy of his report of any investigation that the department conducts to the person or persons who ordered the investigation conducted.”
“ ‘Additionally, § 36-18-25 mandates that “All persons convicted of a criminal offense ... shall, when requested by the director submit to the taking of a DNA sample.... ” [Hammonds] draws the wrong conclusion when he argues that the Department violated its policies and procedures in the taking and processing of [Hammonds’s] blood internally, rather than sending it to Genetic Designs in the ordinary-course of business. The Department was acting within the scope, responsibility, and duty prescribed by the aforementioned statutes. It is a general rule of law that a department’s policies and procedures must yield to the, express dictates of a statute. Ex parte Crestwood Hosp., 670 So.2d 45 (Ala.1995). Ex parte Foshee, 246 Ala. 604, 21 So.2d 827 (1945). The department’s approach to the taking of the blood and processing within the department was reasonable.’
“(R. Vol.4, pp. 646-52).
“The trial court was correct in its ruling; we adopt its excellent summary of the law and its rationale as our own. We find that the Alabama CODIS statute requirement that all persons convicted of a felony, or serving a sentence of imprisonment as a result of any felony conviction, after May 6, 1994, submit a blood sample for DNA processing is not a violation of Hammonds’s Fourth Amendment right against an unreasonable search and seizure. Hammonds’s rights pertaining to the seizure of his blood are outweighed by Alabama’s interest in rapidly identifying repeat or habitually dangerous criminals. Jones v. Murray, 962 F.2d 302 (4th Cir.1992), cert. denied, 506 U.S. 977, 113 S.Ct. 472, 121 L.Ed.2d 378 (1992). Likewise, we find no Fourth Amendment violations in’’ the taking of Hammonds’s blood sample contrary to ADFS protocol regulations. Those regulations were promulgated to assist the Department of Corrections and the Department of Forensic Sciences in the orderly and medically approved collection and processing of numerous blood samples from inmates. The regulations did not implement any constitutional or statutory protections for Hammonds or any other inmate. We hold that the ADFS protocol regulations provide no substantive rights to inmates, including Hammonds. United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). The CO-DIS statutes required that Hammonds submit a blood sample prior to his release from prison. That the Department of Forensic Sciences took Ham-monds’s blood sample and processed it contrary to their protocol regulations did' not breach Hammonds’s Fourth Amendment rights.
“We also agree with the trial court that the language in § 36-18-25, Ala. Code 1975, did not provide Hammonds with a right to refuse to submit to the DNA testing. The statute clearly makes it mandatory for all felon inmates to submit to DNA testing before their release; the language referring to a refusal does not impart a right, but is rather ‘a timing mechanism’ for the submission of the sample. See, Gilbert v. Peters, 55 F.3d 237 (7th Cir.1995). Hammonds’s Fourth Amendment based complaints are without merit.”

777 So.2d at 755-60.

Contrary to the appellant’s contention, Hammonds is directly applicable to this case. Although Hammonds involved the taking of a DNA sample from a convicted felon under § 36-18-24(a) and (b), the Fourth Amendment analysis in Ham-monds is equally applicable to all DNA sampling under § 36-18-24. In this case, the appellant was subject to having a sample of his DNA taken pursuant to §§ 36-18-24(c) and (e). Section 36-18-24(e) provides that the DNA database shall include DNA samples of “[p]ersons convicted after May 6, 1994 of any offense contained in Chapter 6, Title 13A.” Section 36-18-24(e) provides that the DNA database shall include DNA samples of “[pjersons convicted or sentenced after May 6, 1994, for any of the offenses enumerated above and serving a sentence of probation.” Although the appellant was not convicted of a felony, he was convicted of the misdemeanor offense of reckless endangerment and was sentenced to probation; the reekless-en-dangerment statute, § 13A-6-24, Ala.Code 1975, is found in Chapter 6 of Title 13A. Although the appellant’s DNA sample was taken under different provisions in § 36-18-24 than those that were at issue in Hammonds, just as in Hammonds, the appellant’s “rights pertaining to the seizure of his blood are outweighed by Alabama’s interest in rapidly identifying repeat or habitually dangerous criminals.” 777 So.2d at 760.

In addition, as to the appellant’s argument that he had a right of refusal under § 36-18-25(b) and/or (d), we note that the appellant was subject to having a DNA sample taken pursuant to § 36-18-25(a), not subsection (b) or (d). Subsections (b) and (d) apply only to those persons “serving any sentence of probation” or “under any sentence of confinement” on May 6, 1994, the effective date of the act. The appellant was neither on probation nor in confinement on May 6,1994; he was not convicted of reckless endangerment until 1999. Thus, those sections are not applicable to him.

Therefore, taking the appellant’s DNA while he was on probation was not a violation of the Fourth Amendment; the trial court properly denied the appellant’s motion to suppress the DNA evidence on that ground.

III.

Finally, the appellant contends that the trial court erred in denying his motion to dismiss the indictments against him for “want of prosecution.” (Issues III and IV in the appellant’s brief at p. 29.) In this regard, the appellant argues that he was denied a speedy trial because there was an approximately 3-year delay between the date of the crimes — May 3, 1997 — and the date he was arrested — April 28, 2000 — and an additional 19-month delay between the date of his arrest and the date he entered his guilty pleas — December 6, 2001.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court held that when determining whether an accused has been denied his right to a speedy trial, a court must look at: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant’s case.

The appellant argues that his right to a speedy trial was triggered on May 3, 1997, when he committed the crimes, and that, therefore, the length of the delay in this case was approximately four years and seven months. However, it is well settled that “[t]he right to a speedy trial is triggered when a criminal prosecution has begun.” Ex parte Carrell, 565 So.2d 104, 107 (Ala.1990).

“ ‘The protection of the Sixth Amendment is triggered when a criminal prosecution has begun and extends only to those persons who have been “accused” in the course of that prosecution. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468(1971). “[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” Id. at 320, 92 S.Ct. at 463.’ ”

Steeley v. City of Gadsden, 533 So.2d 671, 678 (Ala.Crim.App.1988), quoting Hayes v. State, 487 So.2d 987, 991 (Ala.Crim.App.1986). “ ‘Prearrest delay may give rise to a due process claim, but only delay following formal accusation or delay subsequent to arrest are considered in evaluating a claim under the U.S. Sixth Amendment speedy trial clause.’ ” Steeley, 533 So.2d at 678, quoting Serna v. Superior Court, 40 Cal.3d 239, 251, 219 Cal.Rptr. 420, 427, 707 P.2d 793, 806 (1985). Therefore, contrary to the appellant’s contention, his right to a speedy trial was not triggered on the date of the crimes.

The State takes the position that the appellant’s right to a speedy trial was triggered on April 7, 2000, when the delinquency petitions were initially filed against him in the juvenile court. For purposes of this opinion, we will assume, without deciding, that the State is correct and that the date the delinquency petitions were filed, which is the date most favorable to the appellant’s claim, is the starting point for our analysis.

To trigger a speedy-trial analysis, the delay in bringing an accused to trial must be so excessive as to be “presumptively prejudicial.” Barker, 407 U.S. at 530, 92 S.Ct. 2182; “Unless the delay is presumptively prejudicial, there is no need to inquire into the other Barker factors.” Roberson v. State, 864 So.2d 379 (Ala.Crim.App.2002). “[Wjhether the length of delay is presumptively prejudicial is ‘necessarily dependent upon the peculiar circumstances of the case.’ ” Nickerson v. State, 629 So.2d 60, 64 (Ala.Crim.App.1993), quoting Barker, 407 U.S. at 531, 92 S.Ct. 2182. As noted above, the delinquency petitions were filed against the appellant on April 7, 2000; he pleaded guilty on December 6, 2001. In total, there was a 20-month delay. Delays equal to or longer than the 20 months at issue here have been held not to be presumptively prejudicial. See Ex parte Payne, 683 So.2d 458 (Ala.1996)(25-month delay was not presumptively prejudicial); Campbell v. State, 709 So.2d 1329 (Ala.Crim.App.1997)(26-month delay was not presumptively prejudicial); Weaver v. State, 678 So.2d 260 (Ala.Crim.App.1995)(29-month delay not presumptively prejudicial), rev’d on other grounds, 678 So.2d 284 (Ala.1996); and Arnett v. State, 551 So.2d 1158 (Ala.Crim.App.1989)(20-month delay was not presumptively prejudicial).- However, in other cases, similar delays have been found to be presumptively prejudicial. See Mansel v. State, 716 So.2d 234 (Ala.Crim.App.1997)(26-month delay was presumptively prejudicial); Howard v. State, 678 So.2d 302 (Ala.Crim.App.1996)(29-month delay was presumptively prejudicial); Ingram v. State, 629 So.2d 800 (Ala.Crim.App.1993)(19-month delay was presumptively prejudicial); and Beaver v. State, 455 So.2d 253 (Ala.Crim.App.1984)(16-month delay was presumptively prejudicial). Therefore, without making a specific finding of whether the 20-month delay was presumptively prejudicial, we find it prudent to look at the remaining Barker factors.

As for the reasons for the delay, we note that purposeful and deliberate delay by the prosecuting authority is weighed more heavily against the State than unexcused inaction. See, e.g., Ex parte Clopton, 656 So.2d 1243 (Ala.1995), and Wheat v. State, 662 So.2d 1218 (Ala.Crim.App.1995). In addition, ‘[d]elays occasioned by the defendant or on- his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker.’ Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993), quoting McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981), quoting in turn Walker v. State, 386 So.2d 762, 763 (Ala.Crim.App.), rev’d in part and vacated in part, 860 F.2d, 1091 (11th Cir.1988). This case is unique in that the majority of the 20-month delay- — 16 months, in fact — cannot be weighed in favor of or against either the State or the appellant.

As stated previously, the appellant was charged in delinquency petitions on April 7, 2000; the juvenile court transferred the case to the circuit court for prosecution of the appellant as an adult one month later, op May 10, 2000; the appellant filed a notice of appeal, and this Court affirmed the transfer order on September 29, 2000; and the Alabama Supreme Court denied certiorari review and a certificate of judgment was issued on April 27, 2001. Approximately one month of the delay occurred between the delinquency petitions’ being filed arid the juvenile court’s transferring the case to the circuit court. The appellant’s appeal from the transfer order accounted for another 11 months of the delay. In addition, approximately four months of the delay was due to the appellant’s request for youthful-offender status. The record reflects that on June 26, 2001, the appellant filed an application for youthful-offender status, and the trial court ordered an investigation. The trial court denied the application on November 6, 2001.

In Smelley v. State, 564 So.2d 74, 82-83 (Ala.Crim.App.1990), this Court held that the time between an accused’s application for youthful-offender status and the trial court’s denial of that application “should not be weighed against the State nor in favor of the appellant” because “the right to a speedy and public trial does not apply during the pendency of [a request to be treated as a youthful offender].” See also Kelley v. State, 568 So.2d 405 (Ala.Crim.App.1990). In addition, in Cruse v. State, 489 So.2d 694, 697 (Ala.Crim.App.1986), this Court held that “[s]ince a transfer hearing is not a ‘criminal prosecution’ within the meaning of the constitutional guaranty of the Sixth Amendment right to a speedy trial, that right does not apply to transfer hearings.” Therefore, the month between the filing of the delinquency petitions and the transfer of the case to circuit court and the approximately four months from the appellant’s filing of his application for treatment as a youthful offender and the trial court’s denial of that application should not be weighed in favor of or against either the State or the appellant. Likewise, the 11 months while the appellant’s appeal from the juvenile court’s transfer order was pending should also not be weighed in favor of or against either the State or the appellant because the circuit court did not have jurisdiction to adjudicate the merits of the case, either by trial or by accepting a plea, while the appeal from the transfer order was pending. See Ex parte Webb, 843 So.2d 127 (Ala.2002)(holding that a circuit court does not have jurisdiction to adjudicate the merits of a criminal charge while an appeal of an order transferring the case from juvenile court to circuit court was pending).

As for the remaining four months of the 20-month delay — the three months immediately following the Supreme Court’s denial of certiorari review of the transfer order and the one month after the trial court denied the appellant’s application for youthful-offender status — the record indicates that various pretrial motions were filed by the appellant and disposed of by the trial court. This delay was neither unreasonable nor unexpected in a criminal prosecution.

As for the third Barker factor— the appellant’s assertion of his right — the record reflects that the appellant never asserted his right to a speedy trial and that he did not file his motion to dismiss the indictments on the ground that he was denied a speedy trial until the day he entered his pleas. “Failure to assert the right makes it difficult for a defendant to establish that he was denied a speedy trial.” Wooden v. State, 822 So.2d 455, 457 (Ala.Crim.App.2000).

Finally, the appellant has failed to show any prejudice as a result of the delay. “Barker set out three interests that the right to speedy trial was intended to protect and by which the level of prejudice is to be measured: (1) ‘to prevent oppressive pretrial incarceration’; (2) ‘to minimize anxiety and concern of the accused’; and (3) ‘to limit the possibility that the defense will be impaired.’ ” Kimbrell v. State, 659 So.2d 1039, 1041 (Ala.Crim.App.1995), quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182. Although the appellant makes a bare allegation that he was prejudiced by the delay because, he says, he “was put in a position to contact neighbors (many of wh[om] had moved) and ask them to recall events from a singular day three years ago,” he has not shown, nor even alleged, that any of those neighbors would have been beneficial to his defense. (Appellant’s brief at p. 30.)

In addition, the appellant also contends that he was prejudiced by the delay because, he says, he received a “harsher sentence” as a result of the delay. (Appellant’s brief at p. 31.) Specifically, he argues that on March 21, 2001, the Alabama Board of Pardons and Paroles adopted new rules that changed the time an inmate convicted of rape (among other violent crimes) must serve in prison before becoming eligible for parole consideration from 1/3 of the total length of the sentence or 10 years, whichever is less, to 85 percent of the total length of the sentence or 15 years, whichever is less. Had he been prosecuted sooner, the appellant maintains, he would have been subject to the “old rules” and would only have to serve 1/3 of his sentences (approximately 8.3 years) before being eligible for parole consideration instead of 15 years. Although certainly novel, this argument has no merit.

Initially, we note that this type of alleged prejudice does not fall within the three types of prejudice that have historically been the focus of the speedy-trial analysis — i.e., oppressive pretrial incarceration, anxiety and concern of the accused, and impairment of the defense. However, both this Court and the Alabama Supreme Court have expanded the prejudice prong of the speedy-trial analysis beyond those three considerations. See Ex parte Archer, 643 So.2d 601 (Ala.1992)(noting that adverse effects on parole consideration, eligibility for work release and other prison programs, and place of confinement can be sufficient to establish prejudice); Ex parte Slaughter, 377 So.2d 632 (Ala.1979)(same); and Austin v. State, 562 So.2d 630 (Ala.Crim.App.1989)(same). Thus, we address the appellant’s allegation of prejudice in this regard.

Contrary to the appellant’s contention, a change in rules regarding the date an inmate becomes eligible for parole consideration does not affect the length of the inmate’s sentence (although it could possibly affect the length of an inmate’s incarceration); the appellant did not receive a “harsher sentence” as a result of the change in the rules. In addition, the appellant’s claim that he will be prejudiced by the application of new rules to him ignores the fact that parole is a privilege, not a right. There would be no guarantee under any set of rules that the appellant would, in fact, be granted parole after serving only 1/3 of his sentences. Because the appellant has not shown that he would, in fact, be paroled sooner under one set of rules than he would under another set of rules, he has failed to establish that the delay in prosecution prejudiced him.

After carefully considering and weighing all of the Barker factors, we conclude that the appellant was not denied his right to a speedy trial. Thus, the trial court properly denied his motion to dismiss the indictments.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

      . The juvenile court found the appellant to be indigent when the delinquency petitions were first filed against him and he was appointed counsel to represent him. Later, the appellant’s family retained counsel on the appellant's behalf. After his pleas, the appellant was again found to be indigent by the trial court for purposes of appeal.

      . Although the appellant does not argue in terms of due process, we note that there was no due process violation as a result of any prearrest or preindictment delay.
      "The United States Supreme Court has stated that the ‘Due Process Clause had a limited role to play’ in protecting against the prejudice caused by a preindictment delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977), quoted in State v. Prince, 581 So.2d 874, 877 (Ala.Cr.App.1991). A defendant is charged with a heavier burden of proof in showing a preindictment delay due process violation than in showing a denial of his speedy trial rights.’ Stoner v. State, 418 So.2d 171, 180 (Ala.Cr.App.), cert. denied, 418 So.2d 184 (Ala.1982), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978 (1983). In order to establish a due process violation due to preindictment delay, a defendant must show "(1) that the delay caused actual prejudice to the conduct of his defense, and (2) that the delay was the product of deliberate action by the government designed to gain a tactical advantage.” United States v. Lindstrom, 698 F.2d 1154, 1157-58 (11th Cir.1983).’ Prince, 581 So.2d at 878. A defendant seeking to establish the first prong necessary to show a due process violation from the delay 'must show "actual prejudice, not the mere possibility of prejudice, and that the delay caused substantial prejudice to [the defendant's] rights to a fair trial.” Id., quoting Stoner, 418 So.2d at 180. [Passage of time per se is not a constitutional violation.’ Stoner, 418 So.2d at 180, quoting Lovasco, supra.”

        R.D.H. v. State, 775 So.2d 248, 250-51 (Ala.Crim.App.1997). The appellant has not shown that the prearrest/preindictment delay caused actual prejudice to his defense or that the delay was deliberate on the part of the State in order to gain a tactical advantage.

      . We note, however; that an adjudication of delinquency is not considered to be a criminal conviction. See § 12-15-72(a), Ala.Code 1975, and Chambers v. State, 497 So.2d 607 (Ala.Crim.App.1986). Yet, as previously noted, the protection of the Sixth Amendment is triggered when a criminal prosecution has begun and extends only to those persons who have been accused in the course of that prosecution. Because, as discussed later in this opinion, the appellant's claim is clearly without merit, regardless of the date on which his Sixth Amendment right may have been triggered, we pretermit any discussion as to exactly when the right to a speedy trial attaches in cases such as this case where the proceedings leading up to criminal prosecution and conviction were put in motion by the filing of a delinquency petition, i.e., cases involving the initiation of delinquency proceedings in juvenile court and the subsequent transfer of the juvenile case to circuit court for criminal prosecution. In other words, we need not decide exactly when the appellant’s speedy-trial right was triggered in this case, which would be an issue of first impression in this State, because our conclusion with respect to the appellant’s speedy-trial claim would be no different, regardless of whether the appellant’s right was triggered when the delinquency petitions were filed, when he was arrested on those petitions, when the case was transferred to circuit court for criminal prosecution, when the indictment was returned, or when the certificate of judgment was issued on the appellant’s appeal from the juvenile court’s transfer order.

      . We point out that the appellant's reliance on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), is misplaced. In Pearce, the United States Supreme Court stated that "it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every re-convicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside," and that "the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law.” 395 U.S. at 723-24, 89 S.Ct. 2072 (footnote omitted). Pearce dealt with judicial vindictiveness "manifesting itself in the form of increased sentences upon conviction after retrial.” Chaffin v. Stynchcombe, 412 U.S. 17, 24, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). The appellant, however, was tried for his crimes only once and received only one sentence for each of his crimes. Although he was transferred from juvenile court to circuit court, the transfer hearing was not a conviction and the change in parole rules was not a "penalty” imposed on the appellant for having pursued his right to appeal the transfer order. Therefore, Pearce has no application to this case.


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte D.B. (In re D.B. v. STATE of Alabama).
    1020922.
    Supreme Court of Alabama.
    April 18, 2003.
    Fred Lawton III of Lawton & Associates, Anniston, for petitioner.
   LYONS, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ., concur.


author: McMILLAN, Presiding Judge.

text:
    Karrice DAVIS v. STATE.
    CR-01-2038.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.

      M. Adam Jones, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

On June 24, 1999, the appellant, Karrice Davis, was convicted of the following offenses: third-degree escape, possession of a controlled substance, and two counts of second-degree forgery. He was sentenced to five years’ imprisonment for the escape conviction and to six years’ imprisonment for each of the remaining convictions; all the sentences were to be served concurrently. The trial court suspended Davis’s sentences, placing him on supervised probation for three years. On January 19, 2001, Davis’s probation officer filed a delinquency report, alleging that Davis had violated the conditions of his probation. The report charged that Davis had been arrested for a new offense — possession of a controlled substance. After conducting a hearing in this matter, the trial court revoked Davis’s probation, reinstating his original sentences.

On appeal, Davis argues that the trial court failed to make written findings as to the evidence it relied on and the reasons it revoked his probation.

The general rules of preservation apply in revocation proceedings. Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996). This Court has recognized the following exceptions to the general rules: (1) the requirement of an adequate order of revocation and (2) the requirement that a revocation hearing actually be held. Id. This Court has also held that a defendant can argue for the first time on appeal the trial court’s failure to inform him of his right to request counsel for probation-revocation proceedings. Law v. State, 778 So.2d 249 (Ala.Crim.App.2000).

In the instant case, the trial court’s revocation order is inadequate. It does not contain a written statement of the evidence relied on or the reasons for the revocation. Both Davis and the State have requested that we remand this case to allow the trial court to amend its order. This case is therefore remanded for the Houston Circuit Court to amend its order of revocation in accordance with this opinion. Due return shall be made to this Court within 49 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, SHAW, and WISE, JJ„ concur.

BASCHAB, J., concurs in the result, without opinion.

       Note from the reporter of decisions: On April 18, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: SHAW, Judge.

text:
    James Walter DAVIS III v. STATE of Alabama.
    CR-01-2141.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    M. Adam Jones, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   SHAW, Judge.

James Walter Davis III appeals from the trial court’s order revoking his probation.

On August 22, 2001, Davis pleaded guilty to theft of lost property in the first degree; he was sentenced to 10 years’ imprisonment. That sentence was suspended, and he was placed on three years’ probation. On December 11, 2001, Davis’s probation officer filed a delinquency report alleging that Davis had violated the terms and conditions of his probation by (1) failing to report to his probation officer in November and December 2001; (2) failing to pay supervision fees in October, November, and December 2001; and (3) failing to pay court costs. After .a revocation hearing on June 26, 2002, the trial court revoked Davis’s probation.

On appeal, Davis contends that the trial court’s order revoking his probation was insufficient because, he says, the trial court failed to state the reasons it was revoking his probation or the evidence it relied on in doing so. Although Davis did not object to the sufficiency of the trial court’s order, it is well settled that “the adequacy of a written order of revocation can be raised for the first time on appeal.” Durr v. State, 807 So.2d 595, 595 (Ala.Crim.App.2001), citing Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998).

“ ‘In accordance with Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), before probation can be revoked, an Alabama trial court must provide a written order stating the evidence and the reasons relied upon to revoke probation.’ Trice v. State, 707 So.2d 294, 295 (Ala.Crim.App.1997). ‘These requirements offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct.’ T.H.B. v. State, 649 So.2d 1323, 1324 (Ala.Cr.App.1994).”

Chenault v. State, 777 So.2d 314, 316-17 (Ala.Crim.App.2000). Here, the trial court’s order consisted only of a notation on the case action summary sheet that “[p]robation is revoked.” (C. 2.) As Davis correctly points out in his brief to this Court, this Court held in Durr, supra, that the trial court’s notation on the case action summary sheet that “probation is revoked” was not sufficient to satisfy the requirements of due process. Durr, 807 So.2d at 596. Likewise, in this case, the trial court’s notation on the case action summary sheet was not sufficient to satisfy due process.

Therefore, based on Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), we must remand this cause for the trial court to prepare a written statement of the reasons for revoking Davis’s probation and the evidence it relied upon in doing so. The trial court shall take the necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time within 35 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ„ concur.

       Note from the reporter of decisions: On April 18, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: PER CURIAM.

text:
    VIBO CORPORATION, Appellant, v. MAERSK LOGISTICS USA, INC. and Ray Luengo, Appellees.
    No. 3D02-1944.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Marlow, Connell, Valerius, Abrams, Adler & Newman, Miami, and Rosemary B. Wilder, Fort Lauderdale, for appellant.
    Fowler White Burnett and Allan R. Kelley and June Galkoski Hoffman, Miami, for appellees.
    Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.
   PER CURIAM.

To the extent that this appeal seeks review of an appealable final judgment dismissing all claims against the defendant Luengo, that judgment is affirmed. See Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So.2d 74 (Fla. 3d DCA 1997), review denied, 700 So.2d 685 (Fla.1997). Insofar as it claims error in the dismissal of less than all factually interrelated counts against Maersk Logistics USA, the appeal is dismissed. Mendez v. West Flagler Family Ass’n, Inc., 303 So.2d 1 (Fla.1974).

Affirmed in part, appeal dismissed in part.


author: GREEN, J.

text:
    Gary R. DONSHIK, M.D. and Cardiology Associates, Inc., Appellants, v. Alan SHERMAN, Guardian of the Person and Property of Joseph Sherman, Appellee.
    No. 3D02-2241.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2003.
    Rehearing and Rehearing En Banc Denied Dec. 10, 2003.

      Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A. and Shelley H. Leinicke (Ft.Lauderdale), for appellant.
    Podhurst, Orseck, P.A. and Joel S. Per-win; Abramowitz & Pomerantz, P.A. (Sunrise), for appellee.
    Before LEVY, GERSTEN, and GREEN, JJ.
   GREEN, J.

Appellants, Gary R. Donshik, M.D. and Cardiology Associates, Inc. (collectively, “Dr. Donshik”), appeal a final judgment entered against them, pursuant to a jury verdict, in a medical malpractice action brought by appellee, Alan Sherman, Guardian of the person and property of Joseph Sherman. Dr. Donshik raises three issues on this appeal, one of which we find to be meritorious enough to warrant a new trial. We therefore reverse the final judgment for the reasons specified herein.

This action began after Joseph Sherman (“Sherman”) sustained a major debilitating stroke in April 1988 while under the medical care of Dr. Donshik for cardiovascular disease. Dr. Donshik, a board certified physician in cardiovascular disease and internal medicine, had been treating Joseph Sherman for over ten years. Prior to his stroke, Sherman, 68 years old, was overweight with a longstanding history of asymptomatic bilateral carotid artery disease, high blood pressure, smoking, elevated lipids and hypertension. He had undergone coronary by-pass surgery ten years prior to the stroke at issue here.

The issue in this case was whether Dr. Donshik was negligent in failing to prophy-lacticaily treat Sherman surgically, rather than medically, to reduce the risk of another stroke. The plaintiffs theory of liability in this case was essentially that because Sherman was suffering from asymptomatic carotid artery disease, Dr. Donshik should have recommended that he be treated surgically, to reduce the risk of a stroke, in accordance with the findings from an earlier Asymptomatic Carotid Atherosclerosis Study (“ACAS”).

According to the ACAS findings, which were published in the Journal of the American Medical Association in March 1995, ninety-five percent (95%) of the study’s patients who opted for the surgical procedure known as a carotid endarterec-tomy avoided a stroke, whereas eighty-nine percent (89%) of the patients who were treated only medically avoided a stroke. For males, the study found that ninety-six percent (96%) of the participants who had the surgery remained stroke free and eighty-eight percent (88%) who were treated medically remained stroke free. Sherman’s experts all opined that, in accordance with this report, he would have remained stroke free had Dr. Donshik treated him surgically rather than medically. Although Dr. Donshik and the defense experts acknowledged the significance of the ACAS report, they disagreed that it was authoritative or that it set the standard of care for the treatment of all asymptomatic patients. They maintained that the ACAS report was inapplicable to Sherman because although there were patients in the study with individual risk factors such as obesity, bilateral carotid artery disease, smoking history, etc., Sherman had, not one, but all of these risk factors. The defense further contended that the ACAS report’s findings revealed that there was an overwhelming probability that a patient would not suffer a stroke with either medicinal or surgical treatment.

During Sherman’s case in chief the plaintiff was permitted to introduce the ACAS report into evidence through one of the plaintiffs experts. The defense objected on grounds that the admission of this report impermissibly bolstered the credibility of the plaintiffs expert opinions and was otherwise violative of section 90.706 of the Florida Evidence Code. See § 90.706, Fla. Stat. (1987). This objection was overruled.

The plaintiff thereafter successfully argued to the jury that Dr. Donshik breached the standard of care set forth in the ACAS report by not treating Sherman surgically. The jury returned a verdict for the plaintiff. After the denial of post-trial motions, Dr. Donshik instituted this appeal.

Dr. Donshik argues, and we agree, that the trial court abused its discretion when it permitted the introduction of the ACAS report as part of the plaintiffs case in chief in violation of section 90.706 of Florida’s Evidence Code. According to this statute, which codified Florida case law:

Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.

Section 90.706 does not permit statements in a learned treatise to be used as substantive evidence since the treatise would be hearsay if offered as substantive evidence. Green v. Goldberg, 630 So.2d 606, 609 (Fla. 4th DCA 1993). To date, no hearsay exception has been recognized by any Florida court for the contents of a treatise and we decline to do so now. See Charles W. Ehrhardt, Florida Evidence § 706.1 (2000 ed.). Instead, Florida courts have uniformly held that published treatises, books or writings such as the ACAS report, which purport to be authoritative, may not be used on direct examination as substantive proof to bolster, the credibility of a party’s expert witness. See Liberatore v. Kaufman, 835 So.2d 404, 407 (Fla. 4th DCA 2003) (“Experts cannot, on direct examination, bolster their testimony by testifying that a treatise agrees with their opinion.”); Erwin v. Todd, 699 So.2d 275, 278 (Fla. 5th DCA 1997) (holding that it was error to permit defense counsel to question medical expert during direct examination about a medical journal article and for expert to read portions of that article into evidence); Green v. Goldberg, 630 So.2d 606, 609 (Fla, 4th DCA 1993) (“Under section 90.706, ... authoritative publications can only be used during the cross-examination of an expert and not to bolster the credibility of an expert or to supplement an opinion of the doctor which has already been formed.”); Costanzo v. Agency Rent-A-Car, Inc., 560 So.2d 265, 266 (Fla. 4th DCA 1990) (finding error in permitting the credibility of expert witness to be bolstered through use of a medical treatise); Quarrel v. Minervini, 510 So.2d 977, 978 (Fla. 3d DCA 1987) (“Medical treatises cannot be used to bolster the testimony of a physician on direct examination.”); Medina v. Variety Children’s Hosp., 438 So.2d 138, 139 (Fla. 3d DCA 1983) (same). See also Tallahassee Mem’l Reg’l Med. Ctr. v. Mitchell, 407 So.2d 601, 602 (Fla. 1st DCA 1981) (holding that a publication cannot be used under section 90.706 to “supplement the opinion of the doctor which had already been formed and testified to.”).

We think that the introduction of the ACAS report during the plaintiffs case in chief served only to impermissibly bolster the credibility of the plaintiffs experts and diminish the credibility of the defense expert’s opinions on the ultimate issue in this malpractice case. Where, as here, the competing expert opinions, on both sides, were the focal point of the trial, we cannot deem the error in the introduction of the ACAS report to be harmless. Myron v. Doctors Gen. Hosp., Ltd., 704 So.2d 1083, 1092 (Fla. 4th DCA 1997).

Dr. Donshik next argues that the trial court erred in denying his motion for directed verdict on the causation issue under the standard set forth in Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla.1984). Under Gooding, the appellee was required to show that Sherman’s stroke was more likely than not the result of Dr. Donshik’s failure to treat him surgically as opposed to medically. Id. at 1020. Dr. Donshik maintains that Sherman cannot meet this standard where, according to the findings of the ACAS report, the difference between Sherman’s chances of avoiding a stroke with surgical treatment and his chances of avoiding a stroke with medical treatment alone was statistically insignificant (i.e., 95% v. 89%).

The appellee points out, however, that, notwithstanding the data from the ACAS report, two of its experts independently testified that surgery, more likely than not, would have prevented Sherman’s stroke. We find that this evidence satisfied the Gooding standard and created a jury question on the issue of causation. Accordingly, we find no error in the trial court’s denial of motion for directed verdict on this issue.

Finally, and alternatively, Dr. Don-shik posits that he was entitled to a directed verdict on the issue of actual causation where Sherman’s claims were based upon the assumption that Sherman would have agreed to the surgery if it had been recommended to him. We find no merit to this argument. Even if Sherman would have been able to testify as to how he would have proceeded based upon a recommendation for surgery, such testimony would have been inadmissible as conjecture or speculation and violative of the rule established by our supreme court in Drackett Products Co. v. Blue, 152 So.2d 463, 465 (Fla.1963):

A statement by a witness as to what action he would have taken if something had occurred which did not occur — particularly in those instances where such testimony is offered for the purpose of supporting a claim for relief or damages — or what course of action a person would have pursued under certain circumstances which the witness says did not exist will ordinarily be rejected as inadmissible and as proving nothing.

See also LeMaster v. Glock, Inc., 610 So.2d 1336, 1338 (Fla. 1st DCA 1992) (“It has long been the rule that a witness’s opinion as to what would have happened if circumstances were different constitutes rank speculation that is not competent evidence[J”).

Thus, for the foregoing reasons, we reverse the final judgment and remand for a new trial consistent with this opinion.

      . Prior to the stroke at issue, Sherman had suffered another stroke while en route to a doctor's office for a prostate biopsy.

      . This study was funded by an investigator-initiated research grant from the U.S. Public Health Service's National Institute of Neurological Disorder and Stroke. Dr. James F.. Toole, an expert witness for the plaintiff at the trial below, was the chair of the executive committee and publication committee for this study.

      . It was later referenced by the American Heart Association.

      . Indeed, Dr. Donshik's experts relied upon Dr. Toole's testimony as the study coordinator, that the study was not intended to be the standard of care in determining and directing surgeons on which patients to operate because each patient had to be individualized. Dr. Toole further agreed that the ACAS report did not conclude that all asymptomatic patients such as Sherman should undergo en-darterectomies. He did further opine, however, that, within a reasonable degree of medical certainty, Sherman would have avoided a stroke with an endarterectomy.

      . Due to the debilitating effects of the stroke, Sherman was unable to testify at the trial.


text:
    Jose Gabriel MORAN and Ingrid Moran, his wife, Appellants, v. FLORIDA SECURITY ELECTRONICS, INC. and Daniel Alfonso Fraga, Appellees.
    No. 3D01-2539.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2003.
    Rehearing Denied Dec. 10, 2003.

      Chasin & Baron and Keith Chasin, Miami, for appellants.
    Adams & Adams and Joel Lumer, Miami, for appellees.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Jose and Ingrid Moran appeal a defense verdict in a rear-end collision case. We conclude that the Morans should have had a directed verdict in their favor, and remand for a trial on damages.

Jose Moran (vehicle number 2) was traveling southbound on Southwest 137 Avenue in Miami-Dade County when the car ahead of him (vehicle number 1) stopped to make a lefthand turn. There are businesses on both sides of the road. Plaintiff-appellant Moran (vehicle number 2) made a sudden stop behind vehicle number 1. Vehicle number 2 was struck from the rear by the vehicle owned by defendant-appel-lee Florida Security Electronics, Inc., and driven by defendant-appellee Daniel Fraga (vehicle number 3).

Plaintiff Moran brought suit against defendants Fraga and Florida Security. The plaintiffs moved for a directed verdict at trial, which was denied. The jury returned a defense verdict and this appeal follows.

We conclude that a directed verdict should have been granted for the plaintiffs. The three cars were traveling southbound on a street which has businesses on both sides. Vehicle number 1 stopped in order to make a left turn into a business. Vehicle number 2 stopped safely behind vehicle number 1. Vehicle number 3 ran into vehicle number 2.

The Florida Supreme Court has explained that there is a “rebuttable presumption of negligence that attaches to the rear driver in a rear-end collision in Florida....” Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 572 (Fla.2001). This presumption can be rebutted, thus creating a jury issue, where there is “ ‘a sudden stop by the preceding driver at a time and place where it could not reasonably be expected by the following driver....’” Id at 574 (citation omitted).

The Clampitt “unexpected stop” exception does not apply here. The street passed through an area with businesses on each side. It could certainly be reasonably expected that a driver may make a left turn into one of the businesses located on that side of the street.

Fraga’s own self-serving and subjective testimony that he personally did not expect anyone to make a left turn at that point is immaterial. It is a reasonable person standard. Vehicles 1 and 2 stopped safely. The driver of vehicle number 3 clearly was negligent in running into them.

On cross-appeal, defendant-appellee Florida Security appeals the denial of a motion to tax attorney’s fees pursuant to section 768.79, Florida Statutes. In view of our reversal of the judgment, Florida Security is not entitled to attorney’s fees. We address the cross-appeal, however, because the issue may arise again later in this case.

Florida Security served an offer of judgment in the amount of $3,500.00 directed to “plaintiff(s), Jose Moran”. Neither plaintiff accepted the offer. After the defense verdict, a hearing was held on the motion. The trial court denied the motion, ruling that the offer was defective. We agree. The offer could be construed as a joint offer and failed to properly specify the amount attributable to each plaintiff. See Allstate Indem. Co. v. Hingson, 808 So.2d 197, 198 (Fla.2002).

Reversed and remanded for a trial on damages.

       Ingrid Moran made a claim for lack of consortium.


author: WARNER, J.

text:
    Josephine ROMANO, by and through Lawrence ROMANO, Sr., Plenary Guardian, Appellant, v. MANOR CARE, INC., Manor Care of America, Inc., Manorcare Health Services, Inc., New Manorcare Health Services, Inc., Manorcare Health Services of Boynton Beach, Inc., and Manor Care of Boca Raton, Inc. (as to Manorcare Health Services-Boca Raton), Appellees.
    No. 4D02-3852.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2003.
    Rehearing Denied Jan. 12, 2004.

      Susan B. Morrison and Melanie L. Bos-sie of Wilkes & McHugh, P.A., Tampa, for appellant.
    Christopher B. Hopkins and Andrew I. Glenn of Cole, Scott & Kissane, P.A., West Palm Beach, for appellees.
   WARNER, J.

The husband and guardian of a nursing home resident filed a claim against Manor Care, the nursing home, for deprivation of the resident’s rights as set forth in sections 400.022 and 400.023, Florida Statutes (2001). The nursing home moved to compel arbitration pursuant to the arbitration agreement signed by the husband upon his wife’s admission to the home. The trial court determined that the parties had entered into a valid arbitration agreement. Because the arbitration agreement contained provisions that defeat the remedial purposes of the statute, we hold that it was unenforceable and therefore reverse.

Josephine Romano, seventy-nine years old, was hospitalized after a fall in her home. Because Josephine was a poor surgical candidate, Lawrence, her husband, placed her at Manor Care, a nursing home for rehabilitation, when their first choice was unavailable. Lawrence admitted Josephine was mentally competent and participated in this decision.

On the day Josephine was admitted to the facility, the Romanos were not furnished any admission documents, but Lawrence was informed that such paperwork needed to be completed. The next day, a Manor Care representative gave him the admission documents to sign. He was presented with, and signed, eight separate documents, one of which was a six-page arbitration agreement. It was comprehensive in its terms, providing for the arbitration of all disputes, including those brought pursuant to statute. The agreement made specific provisions for discovery, including a prohibition of any depositions except those of expert witnesses, and provisions for the appointment of a former judge as an arbitrator and for the payment of costs. Neither party was entitled to attorney’s fees in arbitration. The agreement also contained a limitation of liability provision which excluded punitive damages and limited non-economic damages to a maximum of $250,000. While the first page of the agreement stated that it contained a waiver of statutory rights, it did not inform the resident that she had a statutory right to sue for punitive damages which she was waiving in the agreement. The resident could cancel the agreement within three days of its signing.

The administrator who supervised the signing of the “Admission Packet” gave each document to Lawrence to sign but did not attempt to explain any of the terms used in the documents. The administrator testified that she really did not understand what the arbitration agreement meant. Although she said that a resident would not be ousted from the home if the arbitration agreement was not signed, she did not tell Lawrence that, nor did the agreement indicate the consequence of not signing it. In fact, Lawrence testified that the administrator simply told him that he had to sign the admission papers. He thought they all had to do with his wife’s health care and admission to the facility.

Josephine resided at Manor Care for only one month. During that time, her physical condition deteriorated rapidly. After leaving the nursing home, Lawrence and Josephine filed suit against Manor Care alleging that the nursing home failed to provide Josephine with adequate health care and protective services, constituting a deprivation of her rights pursuant to sections 400.022 and 400.023. Manor Care moved to compel arbitration based upon the arbitration agreement. The trial court conducted an evidentiary hearing and found a binding arbitration agreement existed between the parties where Lawrence executed the agreement on behalf of Josephine but did not exercise his option to cancel it. The Romanos appeal the order compelling arbitration.

In ruling on a motion to compel arbitration, the trial court is limited to three inquiries: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (citing Terminix Int’l Co. v. Ponzio, 693 So.2d 104,106 (Fla. 5th DCA 1997)). The Romanos’ argument focuses on the first inquiry, namely whether the parties entered into a valid arbitration agreement. Among their several arguments, they contend that the arbitration agreement is unenforceable because it is in violation of the remedial purpose set forth in the statute and does not provide adequate mechanisms for vindicating appellant’s statutory rights.

To decline to enforce a contract as unconscionable, the contract must be both procedurally unconscionable and substantively unconscionable. See Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999) (citation omitted); Kohl v. Bay Colony Club Condo., Inc., 398 So.2d 865, 867 (Fla. 4th DCA 1981). Procedural un-conscionability refers to the individualized circumstances under which the contract is entered, while substantive unconscionability deals with the unreasonableness and unfairness of the contractual terms themselves. See Kohl, 398 So.2d at 868. As we noted in Kohl,

Most courts take a “balancing approach” to the unconscionability question, and to tip the scales in favor of unconsicionability, most courts seem to require a certain quantum of procedural plus a certain quantum of substantive unconscionability.

Id. at 868 (quoting Johnson v. Mobil Oil Corp., 415 F.Supp. 264, 268 (E.D.Mich.1976)). The amount of either may vary. In Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669 (2000), the court explained:

“The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.” (Stirlen v. Supercuts, Inc., supra, 51 Cal.App.4th at p. 1533, 60 Cal.Rptr.2d 138 (Stirlen).) But they need not be present in the same degree. “Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.” (15 Williston on Contracts (3d ed. 1972) § 1763A, pp. 226-227; see also A & M Produce Co., supra, 135 Cal.App.3d at p. 487, 186 Cal.Rptr. 114.) In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.

Id. at 690; see also Burch v. Second Judicial Dist. Court of State ex rel. County of Washoe, 49 P.3d 647 (Nev.2002). Because the arbitration contract in this case is substantively unconscionable to a great degree, and we conclude that there is some irregularity in the contract formation amounting to procedural unconscionability of some degree, the contract is unenforceable.

Although parties may agree to arbitrate statutory claims, even ones involving important social policies, arbitration must provide the prospective litigant with an effective way to vindicate his or her statutory cause of action in the arbitral forum. See Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)); see also Flyer Printing Co. v. Hill, 805 So.2d 829, 831 (Fla. 2d DCA 2001). When an arbitration agreement contains provisions which defeat the remedial provisions of the statute, the agreement is not enforceable. See Flyer Printing, 805 So.2d at 831.

Sections 400.022 and 400.023 are remedial statutes, designed to protect nursing home residents. The Nursing Home Resident’s Rights Act, section 400.022, was originally enacted after a Dade County Grand Jury investigation of nursing homes revealed substantial elder abuse occurring in many nursing homes without any remedial action being taken. See Crotts & Martinez, The Nursing Home Resident’s Rights Act-A Good Idea Gone Bad!, 26 Stetson L.Rev. 599 (1996). The law set up rights of residents, including the right to appropriate medical care, and requires nursing homes to make public statements of the rights and responsibilities of the residents. See § 400.022(1). To enforce these rights, the legislature provided each resident with a cause of action for their violation. See § 400.023(1). Because the legislature recognized that some of those rights may not be financially valuable, or that compensation may be minimal due to the age of the residents, the statute provides for the award of attorney’s fees to assure the ability of the resident to enforce them. See id. The legislature also provided for the award of punitive damages for gross or flagrant conduct or conscious indifference to the rights of the resident. See § 400.023(5). Moreover, there was no cap on pain and suffering damages in the statute.

This arbitration agreement would not vindicate the resident’s statutory rights in any respect. In fact, the agreement would specifically deprive the resident of remedies that the legislature felt were important to the reduction of elder abuse in nursing homes. While it was the intent of the remedial policies of the legislation to permit the award of punitive damages for certain conduct, the agreement prevented the arbiters from awarding such damages. Nor could the arbiters award attorney’s fees to the successful resident even though the ability to make such an award was intended by the legislature. For instance, according to the allegations of the complaint, Josephine was only in the nursing home for thirty days but developed bed sores and received grossly substandard care. Given her advanced age, compensatory damages may be small. Under the arbitration agreement, in order to vindicate her rights, she would have to pay for an attorney herself, the cost of which may prevent her from pursuing a rightful claim. Because the arbitration agreement fails to allow the arbiter to award either attorney’s fees or punitive damages, it does not permit the nursing home resident to vindicate her statutory rights. Therefore, the agreement is unenforceable. See Flyer Printing, 805 So.2d at 831. Because of the limitations contained in the arbitration agreement, it takes away any effective enforcement of the statutory rights of the resident.

As to procedural unconscionability, it is true that the arbitration agreement was not “hidden in the fine print.” It was presented to Lawrence as simply another document required to be signed as part of the admission process. Both Lawrence and his wife are elderly, and while Lawrence owned his own business, there was no showing that he had legal training to understand the rights he was signing away for his wife. Moreover, he was being asked to sign these documents after his wife was already admitted to the nursing home without being told that his failure to sign them would not affect her care or her ability to stay in the home. Given the ages of the resident and her husband and the circumstances surrounding signing of the agreement, we conclude that some quantum of procedural unconscionability is shown. Because of the egregious substantive unconscionability of the terms of the agreement, the test of Kohl and Powertel is met, the agreement is unconscionable and thus unenforceable.

We reverse the order compelling arbitration and remand for further proceedings in the judicial forum.

STONE and STEVENSON, JJ., concur.

      . Although this provision has since been repealed, it was in effect at the time the cause of action in this case accrued.


text:
    Barbara SAENZ, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, and Richard Goldsmith, Appellees.
    No. 3D01-3034.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Rehearing Denied Dec. 10, 2003.
    Liggio, Benrubi & Williams, and Richard M. Benrubi, and Jeffrey M. Liggio (West Palm Beach); Barbara Green, Coral Gables, for appellant.
    Adorno & Yoss, P.A., and Jack R. Reiter, and William S. Berk, Miami, for appel-lees.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   GREEN, J.

Appellant, Barbara Saenz, appeals from a final summary judgment entered in favor of Appellees, State Farm Fire and Casualty Company (“State Farm”) and its agent, Richard Goldsmith, on her claims of malicious prosecution and bad faith; and from the dismissal of her breach of contract claim. We affirm.

Saenz bought a house, through foreclosure, in a completely “gutted” state. Between 1988 and 1991, Saenz rebuilt and renovated the house into move-in condition. She moved into the home in January, 1992. Following Hurricane Andrew, Saenz submitted a claim to State Farm, her insurance carrier, for building/personal property coverage and for additional living expenses (“ALE”). In January, 1993, State Farm inspected the home and paid Saenz $497,405.24. This payment was partially based on Saenz’s submission of a contract from a construction company and also included certain personal property benefits paid at actual cash value. Pursuant to its policy, State Farm withheld replacement benefits from Saenz until receipts for the items replaced were produced.

In July, 1993, producing the receipts, Saenz requested additional replacement cost benefits and ALE reimbursement. She was paid an additional $3,466.20 for her personal property. State Farm deferred paying the ALE request without additional proof of claim. In September, 1993, a State Farm representative visited Saenz’s home and determined the house was in the same condition as it had been during the initial post-loss photographs. Thereafter, the State Farm representative discovered that Saenz’s home had been under renovation since May 1986 — years before Hurricane Andrew. In addition, State Farm’s representative searched the public records arid found no indication of the identity of a contractor on the home (despite Saenz’s presentation of the contract from Shear Construction), nor did the records show that any of the renovations on the house were complete prior to Hurricane Andrew. The representative, thereafter, referred this matter to Goldsmith, a team manager for State Farm’s Special Investigative Unit, to investigate for possible fraud.

In October, 1993, Goldsmith contacted Saenz to advise her that she was under investigation for fraud, and requested a post-claim inspection of her records. Saenz, in turn, told Goldsmith that she and her daughter had purchased the home at a foreclosure sale in 1988, that the structure had been completely renovated by December, 1991, and that she didn’t provide State Farm with a certificate of occupancy because she was advised by the city that she need not apply for one. The parties arranged a meeting where Goldsmith would be able to review the bills and receipts regarding the renovations. This meeting was cancelled by Saenz, who was then informed that State Farm would not provide further payments without the submission of the requested proof of renovation.

Goldsmith personally visited the Coral Gables Building and Zoning Department and confirmed that Saenz’s house had been under renovation for years with no evidence that the renovations were completed before Hurricane Andrew. Moreover, Saenz had submitted receipts for the rental of two storage units following the hurricane, and Goldsmith learned that one of these units' had been rented eight months prior to the hurricane. By the end of December, 1993, Saenz had yet to submit her renovation receipts and Goldsmith, pursuant to section 626.989(6), Florida Statutes, referred Saenz’s claim to the Department of Insurance, Division of In-suranee Fraud (“DIF”). DIF assigned the case to Investigator Maureen Murphy-Perez, who conducted her own independent investigation of Saenz. Murphy-Perez went to the Building and Zoning Department, and also subpoenaed both Florida Power and Light and Southern Bell to determine if Saenz had occupied the house prior to Hurricane Andrew. She found that there had been no phone or electrical service in the house. In addition, Murphy-Perez also discovered fraudulent receipts in the claims file which, in her opinion, presented evidence of fraud.

Murphy-Perez issued a complaint/arrest warrant charging Saenz with violations of sections 817.234 and 812.014, Florida Statutes.

In the arrest affidavit, Murphy-Perez identified five suspicious receipts for reimbursement of personal property that had never been purchased or replaced. Based upon this affidavit, the State Attorney’s office concluded that there was probable cause for the issuance of a criminal information against Saenz. Subsequently, the office decided not to proceed with the criminal prosecution and nolle prossed the charges against Saenz.

Saenz then filed a civil complaint against Goldsmith and State Farm for malicious prosecution and negligence on the part of State Farm in the hiring, training, and supervising of Goldsmith. This complaint, pursuant to an agreed order, was dismissed and Saenz filed an amended complaint. The amended complaint was dismissed by the trial court. Saenz filed a second amended complaint which again claimed that State Farm and Goldsmith should be liable for malicious prosecution because they instituted a criminal complaint against her, and that State Farm was liable in negligence for the hiring, training, and supervision of Goldsmith. In addition, Saenz added a third count against State Farm for bad faith.

Over three years after Saenz filed her original complaint, she filed a motion to amend and a third amended complaint. This complaint again claimed that Goldsmith and State Farm had maliciously and in bad faith accused Saenz of insurance fraud. For the first time, however, this third amended complaint included a count against State Farm for breach of contract. State Farm moved to dismiss this count claiming that it was barred by the statute of limitations.

Before the court could rule on State Farm’s motion, Saenz sought to amend her complaint yet a fourth time to add the State of Florida Department of Insurance and Murphy-Perez as parties. Thereafter, State Farm and Goldsmith moved to dismiss the fourth amended complaint, which was granted as to the breach of contract count. They also filed a motion for summary judgment for the malicious prosecution and negligent hiring claims. Following a hearing, the court granted the motion for summary judgment and entered final summary judgment, finding as a matter of law that State Farm and Goldsmith were immune from liability under Florida Statute 626.989, the Insurance Fraud Statute. The court also found that State Farm and Goldsmith were entitled to judgment on the claim for malicious prosecution, because Saenz “failed to present evidence” that the defendants instituted or continued a criminal prosecution. This appeal followed.

Section 626.989 provides insurers and their employees immunity from civil actions, absent fraud or bad faith, arising out of the furnishing of information required by the statute. Specifically, with regard to immunity, the statute provides that:

In the absence of fraud or bad faith, a person is not subject to civil liability for libel, slander, or any other relevant tort by virtue of filing reports, without malice, or furnishing other information, without malice, required by this section or required by the department or division under the authority granted in this section, and no civil cause of action of any nature shall arise against such person:
1. For any information relating to suspected fraudulent insurance acts furnished to or received from law enforcement officials, their agents, or employees;
2. For any information relating to suspected fraudulent insurance acts furnished to or received from other persons subject to the provisions of this chapter; or
3. For any such information furnished in reports to the department, division, or the National Association of Insurance Commissioners.

§ 626.989(4)(c), Fla. Stat. (1993).

The undisputed record evidence shows that Goldsmith referred this matter to DIF based on Saenz’s failure to document that her home had been under renovation prior to Hurricane Andrew. Thereafter, DIF conducted an independent investigation and determined that Saenz had presented State Farm fraudulent receipts. Following the investigation, the State Attorney’s office found probable cause to bring criminal charges against Saenz. Based upon the undisputed record evidence, we agree with the trial court that as a matter of law, neither Goldsmith nor State Farm acted fraudulently or with bad faith. Thus, we find that the appel-lees were statutorily immune from suit and affirm the final summary judgment. See Zellermaier v. Travelers Indem. Co. of Ill., 190 Misc.2d 487, 739 N.Y.S.2d 922, 924 (N.Y. Gen. Term 2002)(“Since plaintiff has not presented evidentiary proof of fraud or bad faith in either the allegations of the complaint or in papers opposing [summary judgment], the Court grants ... summary judgment[.]”). See also Pearce v. U.S. Fid. & Guar. Co., 476 So.2d 750, 752-53 (Fla. 4th DCA 1985)(“Section [626.989(4)(c) ] immunizes specified persons, if they have done what the section requires or what the Insurance Fraud Division requires pursuant to its authority under the statute ... [from] all civil causes of action based upon conduct under the statutory section.”). Moreover, the fact that the state attorney’s office declined for whatever reason to proceed with its prosecution against Saenz does not vitiate its initial probable cause finding in the fraud matter. Thus, for this additional reason, summary judgment was proper. See Jack Eckerd Corp. v. Smith, 558 So.2d 1060 (Fla. 1st DCA 1990) (legal malice, which is the absence of probable cause, must be proved to recover compensatory damages in malicious prosecution action.).

Likewise, we affirm the court’s dismissal of Saenz’s breach of contract claim on statute of limitation grounds. Florida Statute 95.11 limits the time period to bring an action on a contract or written instrument to five years. This time period, in breach of insurance contract actions, begins to run from the date of the alleged breach. See State Farm Mut. Auto. Ins. Co. v. Lee, 678 So.2d 818, 821 (Fla.1996)(statute of limitations for action based on insurer’s failure to pay benefits begins to run when insurer breaches its obligation to pay). According to Saenz’s fourth amended complaint, the breach in this case took place on or before November 23, 1993. The third amended complaint, which first raised the breach of contract count, was filed August 19, 1999, well after the expiration of the limitation period. Accordingly, dismissal was proper.

Affirmed.

      . Saenz contends that she provided Goldsmith with a summary of her expenses. Goldsmith, however, claims that he told Saenz that State Farm required documentation reflecting the renovations, not an unverified summary.

      . Section 626.989(6) provides in pertinent part that:
      any insurer, agent, or other person licensed under the code, or an employee thereof, having knowledge or who believes that a fraudulent insurance act or any other act or practice which, upon conviction, constitutes a felony or a misdemeanor under the code, or under s. 817.234, is being or has been committed shall send to the Division of Insurance Fraud a report or information pertinent to such knowledge or belief and such additional information relative thereto as the department may require.
      § 626.989(6), Fla. Stat. (1992).

      . This statute provides in pertinent part that: (l)(a) Any person who, with the intent to injure, defraud, or deceive any insurance company

      1. Presents or causes to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim; or
      2. Prepares or makes any written or oral statement that is intended to be presented to any insurance company in connection with, or in support of, any claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, ors. 775.084.
      § 817.234(l)(a), Fla. Stat. (1991).

      .This statute reads:
      (1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
      (a) Deprive the other person of a right to the property or a benefit therefrom.
      (b) Appropriate the property to his own use or to the use of any person not entitled thereto.
      § 812.014(1), Fla. Stat. (1991).

      . Specifically the statute provides:
      Actions other than for recoveiy of real property shall be commenced as follows:
      * * * *
      (2) WITHIN FIVE YEARS.—

      lb) A legal or equitable action on a contract, obligation, or liability founded on a written instrument.
      § 95.1 l(2)(b), Fla. Stat. (1993).


text:
    Ben FISHER, Appellant, v. The STATE of Florida, Appellee.
    No. 02-1040.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 2003.
    Rehearing Denied Dec. 10, 2003.
    Ben Fisher, in proper person.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before GERSTEN and SHEVIN, JJ. and NESBITT, Senior Judge.
   PER CURIAM.

Ben Fisher (“Fisher”) appeals the trial court’s order summarily denying his motion for post conviction relief. We reverse and remand for farther proceedings.

In his motion, Fisher alleged that at sentencing, the trial court stated it would retain jurisdiction to modify Fisher’s sentence for early release once he completed the Tier program. Fisher alleges that he completed the program and brought the matter to the trial court’s attention. However, the trial court denied his motion as legally insufficient. Fisher’s claim is facially sufficient, thus he is entitled for the trial court to address this claim on the merits. See Kirtsey v. State, 855 So.2d 177, 2003 WL 22056300 (Fla. 1st DCA, Sept.5, 2003).

On remand, the trial court shall review the relevant records to determine if'Fisher is in fact entitled to early release. See Hepburn v. State, 780 So.2d 326 (Fla. 3d DCA 2001). If the trial court denies Fisher relief, it shall attach those portions of the record that refute his claim.

Accordingly, we reverse the summary denial of the claim and remand for the trial court to address the claim on the merits.

Reversed and remanded.