author: LEWIS, J. WELLS, J., PARIENTE, J.,

text:
    John C. ROWELL, Petitioner, v. Julianne M. HOLT, Respondent.
    No. SC01-2010.
    Supreme Court of Florida.
    June 26, 2003.

      Theodore “Ted” E. Karatinos of Seeley & Karatinos, P.A., St. Petersburg, Florida; and James W. Holliday of Prugh, Holliday & Deem, P.L., Tampa, FL, for Petitioner.
    Todd W. Vraspir of Papy, Weissenborn, Poole & Vraspir, P.A., Spring Hill, FL, for Respondent.
    Joseph W. Little, Gainesville, Florida; Robert C. Widman, Venice, Florida; and Robert V. Potter, Jr., Clearwater, FL, for Ernest Morgan and Beverly Keehnle, Ami-ci Curiae.
   LEWIS, J.

We have for review a decision of a district court of appeal on the following question, which the court certified to be of great public importance:

DOES THE IMPACT RULE APPLY TO PROHIBIT THE RECOVERY OF NONECONOMIC DAMAGES IN A LEGAL MALPRACTICE CLAIM WHEN THE NEGLIGENCE OF A CRIMINAL DEFENSE ATTORNEY RESULTS IN A LOSS OF LIBERTY AND RESULTING EMOTIONAL OR PSYCHOLOGICAL HARM?

Holt v. Rowell, 798 So.2d 767, 773 (Fla. 2d DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we believe the instant case presents a unique factual scenario deserving of an equally tailored principle of law, we rephrase the certified question as follows:

IN AN ACTION FOR LEGAL MALPRACTICE, DOES THE IMPACT RULE PRECLUDE RECOVERY OF NONECONOMIC DAMAGES WHEN THE UNCONTROVERTED NEGLIGENT FAILURE TO DELIVER A DOCUMENT THAT WOULD HAVE PRODUCED THE IMMEDIATE RELEASE OF A PRETRIAL DETAINEE RESULTED IN A PROTRACTED PERIOD OF WRONGFUL PRETRIAL IMPRISONMENT WITH RESULTANT EMOTIONAL DISTRESS OR PSYCHOLOGICAL HARM, BUT NO PHYSICAL IMPACT?

For the following reasons, we answer the rephrased certified question in the negative. We therefore quash that portion of the district court’s decision reversing the jury award of damages for psychological injury, and remand the case for reinstatement of the award of noneconomic damages.

BACKGROUND AND FACTS

The facts underlying the instant action, exhaustively well detailed in the district court’s decision below, are as follows:

In May 1995, John Rowell sold two firearms to a pawnshop. Based upon these sales, Mr. Rowell was arrested on July 6, 1995, in Marion County, Florida, for two counts of felon in possession of a firearm. In fact, Mr. Rowell was innocent of these charges. Although Mr. Rowell had been convicted of a felony in 1966 when he was 22 years of age, he had received a restoration of his civil rights on June 18, 1975. Mr. Rowell was unable to convince the arresting officers that he was innocent of the crimes charged. He was transported to the Hillsborough County Jail, where he remained overnight until his first appearance hearing scheduled for the following morning, July 7,1995.
In the Thirteenth Judicial Circuit, preliminary presentation hearings are often performed via closed circuit television. The defendants are physically located at the jail, and an assistant public defender is assigned to this location. A second assistant public defender is present in the courtroom with the presiding judge and the assistant state attorney.
At Mr. Rowell’s preliminary presentation hearing on the morning of Friday, July 7, an assistant public defender at the jail spoke with Mr. Rowell, and Mr. Rowell signed an affidavit of indigency and an invocation of rights, thus establishing an attorney-client relationship with the Office of the Public Defender. Mr. Rowell had in his possession a document indicating that his civil rights had been restored. When the trial judge called Mr. Rowell’s case, Mr. Rowell told the trial judge directly that he had proof of the restoration of his civil rights and held up the document. Because the trial judge could not see the contents of the document, the trial judge instructed the assistant public defender to obtain a copy of that document so that the case could be resolved if Mr. Rowell was indeed permitted to possess a firearm. On the videotape of this event, Mr. Ro-well can be seen handing the document to the assistant public defender at the jail. It is not clear what the assistant public defender who received the document did with it after this hearing. At the time of trial, the assistant public defender could not remember following up on the judge’s instructions.
The first appearance judge, concerned that Mr. Rowell might be wrongfully charged, ordered that Mr. Rowell’s case be placed on the docket for review on Tuesday, July 11, four days later. This hearing never occurred. According to the assistant public defenders involved in this case, they took no responsibility in keeping track of these types of hearings; instead, they traditionally relied exclusively upon the clerk of the court to properly document and schedule them. It appears that the clerk in this case mistakenly noted that the hearing would be held on July 15, a Saturday on which no hearings were held. Although hearings presumably occurred before this judge with the participation of assistant public defenders on July 11, Mr. Ro-well’s case was not addressed. As a result, Mr. Rowell remained in jail past July 11 and July 15.
Meanwhile, through the natural process of opening files, Mr. Rowell’s case was assigned to a third assistant public defender. This attorney first reviewed the file on July 12, 1995. The file did not contain the document indicating Mr. Rowell’s civil rights had been restored or any notation that a hearing had been scheduled. The assistant public defender therefore gave the case no particular priority, but scheduled his first visit with Mr. Rowell at the jail on July 18, 1995. Once this assistant public defender met with Mr. Rowell on July 18, and Mr. Rowell provided the attorney with yet another copy of the document restoring Mr. Rowell’s civil rights, the assistant public defender was able to obtain Mr. Rowell’s release from jail within two days. The charges against Mr. Rowell were ultimately dismissed.
Mr. Rowell filed a legal malpractice action against the Office of the Public Defender. At trial, he contended that the assistant public defenders handling his case were negligent, because he presented them with a document that could have secured his immediate release, yet it took them over ten days to do so. As a result, he requested damages including his lost earning capacity and damages for his “loss of liberty,” including the mental anguish, inconvenience, and embarrassment caused by his unnecessarily extended incarceration.
Throughout the trial, counsel for the Office of the Public Defender sought to limit Mr. Rowell’s recovery to his economic damages because Mr. Rowell had not suffered any impact or physical injury as a result of his incarceration. The trial judge rejected this argument and held that the “impact rule” did not apply in this context....
The jury found that the assistant public defenders were negligent, and their negligence caused Mr. Rowell to suffer certáin damages. They awarded Mr. Rowell $504 for his loss of earning capacity and $16,500 for his mental anguish, pain, and suffering. After the verdict, the Office of the Public Defender filed a motion for judgment notwithstanding the verdict, again challenging the award of noneconomic damages as a violation of the impact rule. The trial court denied this motion and entered a final judgment in favor of Mr. Rowell in accordance with the jury’s verdict.

Rowell, 798 So.2d at 768-70.

Based on the facts presented, the district court following existing precedent, as required, held that existing Florida law pertaining to the impact rule precluded an award of damages for mental injury, and begrudgingly reversed that portion of the jury award. See id. at 770. The district court articulately expressed its misgivings and reservations with regard to applying the impact rule in the context of Rowell’s action, but did so with the certification of a question to this Court to determine whether the rule should preclude recovery for emotional harm in the instant case. See id. at 770-72. This review followed.

ANALYSIS

We .begin our analysis of the question presented with a brief review of the impact rule as it has been applied by the courts in this state. The rule requires that “before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries sustained in an impact.” R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995) (quoting Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992)). The impact rule has been traditionally applied primarily as a limitation to assure a tangible validity of claims for emotional or psychological harm. See R.J., 652 So.2d at 363; Gonzalez v. Metro. Dade County Pub. Health Trust, 651 So.2d 673, 675 (Fla.1995); Kush v. Lloyd, 616 So.2d 415, 423 n. 5 (Fla.1992). Florida jurisprudence has generally reasoned that such assurance is necessary because, unlike physical injury, emotional harm may not readily align with traditional tort law damage principles. Our courts have explained that the existence of emotional harm is difficult to prove, resultant damages are not easily quantified, and the precise cause of such injury can be elusive. See R.J., 652 So.2d at 362. This Court has also theorized that without the impact rule, Florida courts may be inundated with litigation based solely on psychological injury. See Gonzalez, 651 So.2d at 675.

In recent years, this Court has had occasion to review the continued vitality of the impact rule, and has consistently reaffirmed that the rule serves as an important safeguard when applied under certain proper circumstances in our judicial system. See, e.g., R.J., 652 So.2d at 363; Gonzalez, 651 So.2d at 674-75. The impact rule is not, however, an inflexible, unyielding rule of law, so sacred that it must be blindly followed without regard to context. If we were to ascribe such weight to the doctrine, the impact rule itself would exceed the parameters of its underlying justifications. Exceptions to the rule have been narrowly created and defined in a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule. See Tanner v. Hartog, 696 So.2d 705, 708 (Fla.1997); Kush, 616 So.2d at 422-23.

In Kush, the parents of a child born with a genetic impairment initiated an action for wrongful birth against the hospital and physicians who had informed them prior to the mother’s becoming pregnant that neither parent carried a genetic abnormality. See Kush, 616 So.2d at 417. The parents sought recovery for both the expenses incurred in caring for their child as well as damages for mental anguish. See id. This Court held the impact rule inapplicable to wrongful birth actions, and in so doing, expressed doubt that the impact rule was ever intended to embrace the tort of wrongful birth “where emotional damages are an additional ‘parasitic’ consequence of conduct that itself is a freestanding tort apart from any emotional injury.” Id. at 422 (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 361-65 (5th ed.1984)). The Court further reasoned that to the extent the impact rule does not apply to recognized torts such as defamation and invasion of privacy, which result in predominantly emotional damages, it should not preclude recovery for the mental anguish flowing from a wrongful birth, where such harm is equally foreseeable and certainly more grievous. See id. at 422 (citing Miami Herald Publ’g, 66 So.2d at 681, and Cason, 20 So.2d at 243). In the words of the Kush Court:

There can be little doubt that emotional injury is more likely to occur when negligent medical advice leads parents to give birth to a severely impaired child than if someone wrongfully calls them liars, accuses them of unchastity, or subjects them to any other similar defamation. A defamation may have little effect, may not be believed, might be ignored, or could be reversed by trial publicity. But the fact of a child’s serious congenital deformity may have a profound effect, cannot be ignored, and at least in this case is irreversible.

Id. at 422-23.

In Tanner, this Court again invoked the concept of foreseeability in holding that the impact rule should not preclude the parents of a child stillborn as a result of negligent medical care from recovering for the mental anguish sustained. See Tanner, 696 So.2d at 708. The Court correctly reasoned that the impact rule should not be applied to produce the “outright denial of a claim for the mental pain and anguish which is so likely to be experienced by parents as a result of the birth of a stillborn child caused by the negligence of another.” Id. (emphasis added). The Tanner Court also carefully expressed its limited determination that the case constituted a “natural evolution of the common law,” which was not intended to degrade the impact rule. Id.

Considering and applying the reasoning employed in Kush and Tanner, we determine that the impact rule should not preclude recovery of noneconomic damages in the instant case. In rendering this decision, we approve the reasoning of the district court below that the special professional duty created by the relationship between Rowell and his attorney, coupled with the clear foreseeability of emotional harm resulting from a protracted period of wrongful pretrial incarceration, render application of the impact rule unjust and without an underlying justification in the factual circumstances here. Moreover, we are persuaded by the petitioner’s arguments that the facts presented in the instant action neither implicate nor call forth the legal and policy concerns that have been historically advanced as justification for the application of the impact rule.

There is no question that, as Rowell’s attorney, the assistant public defender who participated in the preliminary presentation hearing had a special, professional, and independent duty to “exercise the degree of reasonable knowledge and skill which lawyers of ordinary ability and skill possess and exercise.” Home Furniture Depot, Inc. v. Entevor AB, 753 So.2d 653, 655 (Fla. 4th DCA 2000). It is also uncon-troverted that clearly Rowell had been wrongfully arrested and confined, and — as proven by the videotape of the presentation hearing — that he provided his attorney with the document necessary to secure his immediate release from his pretrial incarceration. There is also no dispute that, once in the possession of Rowell’s attorney, the document apparently vanished, and, in any case, was not produced to the presiding judge as the judge had specifically instructed. Rowell, in effect, laid in his attorney’s hands the very keys to the jailhouse door, which his attorney negligently failed to place in the lock. As a direct result of his attorney’s negligence, Rowell was subjected to a protracted period of wrongful pretrial confinement, and concomitant loss of treasured liberty.

Given the facts of this case, Rowell’s attorney — whose sole concern should have been to facilitate Rowell’s immediate release from pretrial incarceration — could doubtlessly foresee that his negligent failure to end his client’s wrongful incarceration would result in significant emotional distress. Indeed, the .citizens of a free society can conceive of no greater injury than the continued unjust deprivation of liberty. The special duty undertaken by Rowell’s attorney, along with the foreseeability of the harm that would flow from his breach of that duty, lead us to conclude that the impact rule should have no application here to preclude Rowell’s recovery of damages for psychological injury.

We are also persuaded that the facts of the instant case do not implicate the legal and policy concerns that are traditionally voiced as undergirding the impact rule. Unlike some actions involving emotional harm, the issue of causation presented here is straightforward and beyond reasoned dispute. A direct causal link can be clearly and rationally drawn in the instant case from the attorney’s negligent failure to transmit the document showing the restoration of Rowell’s civil rights to the extended period of continuing wrongful pretrial confinement and resultant emotional injury.

Moreover, the damages suffered in the instant case are reasonably capable of measurement. This is not a ease in which Rowell simply experienced a few hours or one day of unjust pretrial imprisonment. Here, the hours became days and the days extended beyond a week as he was confined within the walls of a small cell deprived of one’s most basic freedoms — the freedom of movement, the right to privacy, and the freedom to associate with persons of one’s own choosing. For the emotional trauma flowing from this deprivation of liberty, and corresponding injury, albeit mental in nature, a jury of his peers deemed $16,500 to be proper compensation. While we are cognizant of precedent suggesting that the impact doctrine properly reflects the principle that “[tjhere must be some level of harm which one should absorb without recompense as the price he pays for living in an organized society,” Gonzalez, 651 So.2d at 675 (quoting Stewart v. Gilliam, 271 So.2d 466, 477 (Fla. 4th DCA 1972) (Reed, C.J., dissenting), quashed, 291 So.2d 593 (Fla.1974)), we believe that Rowell paid too high a price with his pretrial liberty to be forced to forego compensation based upon rigid application of a limiting doctrine, and that the jury award reasonably represented the damages logically flowing from his injury. No man or woman should be forced to be wrongfully incarcerated on a continuing extended basis in a pretrial detention posture while his or her attorney holds the key in hand to simply open the door to freedom. Under these circumstances, it is beyond reason to suggest that society or the law should insulate one causing such continuing confinement with application of harsh artificial doctrines of such extreme impact.

In rendering this decision, we reject the respondent’s arguments that permitting the assessment of damages for psychological injury in the instant case will open a Pandora’s Box to claims for emotional distress for “anyone who spent time in jail justifiably or not.” Our holding today is limited to matters involving wrongful, not justifiable, extended pretrial confinement where the incarcerated individual’s attorney holds the key to freedom, but fails to deliver material to a judge as instructed, and either discards or misplaces the evidence. It is beyond dispute that Rowell was innocent of the crime charged, should not have been arrested, and was wrongfully confined on a continuing basis in pretrial detention. Moreover, as previously expressed, the period of wrongful confinement in this case was lengthy. One whose arrest and imprisonment is even arguably justifiable, whose unjustified incarceration is relatively brief, or whose legal representative does not have the clear and uncon-troverted evidence in hand which facially eliminates the basis for the charges, will find no succor in this decision.

Furthermore, we deem untenable respondent’s contention that our holding will implicate the entire spectrum of legal defense work, including claims of ineffective assistance of counsel, and we specifically state that such is not the field in which this decision flows. The instant case does not simply involve negligence arising from insufficient preparation, incomplete investigation, legal ineptitude, or any other subjective indicia of a lawyer’s performance. To obtain his client’s release, Rowell’s attorney here needed only to deliver, transmit, or hand over to the judge the document which he had been provided and which he held in his hands. The attorney simply and completely failed to follow through or do anything, which resulted in Rowell’s lengthy period of continuing pretrial confinement. In light of the unique facts of this case, we are satisfied that our holding here today will not — as respondent claims — subject defense attorneys to incessant second-guessing and excessive litigation.

This determination should not, and we are confident will not, be interpreted to cast doubt on the continued viability of the impact rule, nor should this decision be extended any further than as narrowly tailored. We reaffirm the role the impact rule plays as a safeguard against unduly speculative claims. However, neither law nor policy compels or justifies application of the impact rule in the instant case. Cf. R.J., 652 So.2d at 368-64 (refusing to create an exception to the impact rule for emotional distress suffered from negligent medical testing and expressly stating that the creation of such an exception would have a “substantial impact” on the provision of medical care). Where an attorney bearing a special professional duty to protect the rights of his client is provided the means to unquestionably break down the walls of wrongful, unjust pretrial restraint, but negligently fails to do so by not even delivering the clear and uncontroverted evidence, the impact rule should not bar recovery for the emotional distress that would foreseeably result.

CONCLUSION

For the foregoing reasons, we quash that portion of the district court’s decision that reversed the jury award for psychological damages, approve the remainder of the decision below, and remand for a reinstatement of the noneconomic damages awarded by the jury.

It is so ordered.

QUINCE, J., and SHAW, Senior Justice, concur.

WELLS, J., concurs with an opinion, in which ANSTEAD, C.J., concurs.

PARIENTE, J., concurs specially with an opinion.

WELLS, J.,

concurring.

I concur with the decision reached by the majority. However, I would answer the question as it was phrased by the district court. I also reach this decision by different reasoning.

I note that in Schreiber v. Rowe, 814 So.2d 396, 899 (Fla.2002), this Court adopted a specific rule pertaining to legal malpractice claims against public defenders that a plaintiff “as part of the causation element of the cause of action, [is] to prove by the greater weight of the evidence that he was innocent of the crimes charged in the underlying criminal proceeding.” Id. at 399 (quoting Rowe v. Schreiber, 725 So.2d 1245, 1251 (Fla. 4th DCA 1999)); see Johnson v. Gibson, 837 So.2d 481 (Fla. 5th DCA 2002), review dismissed, No. SC03-399, 845 So.2d 890 (Fla. Apr.24, 2003).

In view of this specific condition requiring a plaintiff to prove innocence in this cause of action, I believe that when a plaintiff can carry this burden of proof and also demonstrate that the legal malpractice caused a loss of liberty, the damages which should be available to be recovered by the plaintiff should logically be the same damages as are available to be recovered for the tort of false imprisonment. Certainly, I recognize that false imprisonment, unlike legal malpractice, is an intentional tort. But under our precedent, a claim for false imprisonment can be brought regardless of malice. Thus, I cannot see that the difference between intent and negligence in this instance should control the compensatory damages which can be recovered. An innocent person falsely imprisoned is equally damaged in respect to compensatory damages, regardless of whether the imprisonment flows from intentional conduct by a store owner or negligent conduct by a public defender.

In S.H. Kress & Co. v. Powell, 132 Fla. 471, 180 So. 757 (1938), this Court set out the available damages recoverable for false imprisonment:

In an action for false imprisonment, which may be brought regardless of whether there was, or was not, malice, the elements of recoverable compensatory damages may include bodily injuries or physical suffering, which are the proximate result of the unlawful imprisonment, or illness caused thereby; physical inconveniences and discomfort suffered by reason of the condition of the place of confinement; loss of time, and losses sustained in the business or employment of the plaintiff; expenses incurred as a result of the unlawful imprisonment; mental suffering endured because thereof, such as embarrassment, humiliation, deprivation of liberty, disgrace and injury to the feelings of the person unlawfully imprisoned, as well as injury to his reputation, resulting therefrom. 25 C.J. 556-560.

Id. at 763; see Normius v. Eckerd Corp., 813 So.2d 985, 987 (Fla. 2d DCA 2002).

On the basis of this reasoning, I would answer the question certified by the district court in the negative.

ANSTEAD, C.J., concurs.

PARIENTE, J.,

specially concurring.

I write separately to indicate my agreement with the approach set forth in Justice Wells’ separate concurrence. Further, although I agree with the majority that the impact rule should not bar the petitioner’s recovery of damages in this case, I write to once again express my view that the Court should abolish the impact rule. See Gracey v. Eaker, 837 So.2d 348, 358 (Fla.2002) (Pariente, J., concurring).

The issue in this case is whether the impact rule should prohibit Rowell from recovering emotional damages sustained during his incarceration for a period extending nearly two weeks — a loss of liberty which directly resulted from the uncontro-verted negligence of his attorney. I fully concur with the majority that none of the policy reasons underlying the impact rule would be served by denying Mr. Rowell his right to recover the damages awarded by the jury. I further agree with Justice Wells that this legal malpractice action should be conceptually analyzed as a claim of false imprisonment. As the Second District in this case pointed out, the damages awarded by the jury to Mr. Rowell are no different than those to which he would have been entitled if the underlying cause of action had been for malicious prosecution or false imprisonment rather than for wrongful incarceration directly resulting from his attorney’s negligence. See Holt v. Rowell, 798 So.2d 767, 772 n. 3 (Fla. 2d DCA 2001) (“The existence of a freestanding tort explains the trial judge’s inclination to treat the recoverable damages as similar to those in the torts of malicious prosecution or false imprisonment.”).

This case is one more example of why “Florida should join the growing number of states that have abolished the arbitrary restriction on tort claims imposed by the judicially created impact rule.” Gracey, 837 So.2d at 358 (Pariente, J., concurring). In my view, the recovery of damages for mental anguish should not depend on whether Mr. Rowell suffered an actual injury while he was incarcerated or alternatively became physically ill because of his incarceration. As I stated in my recent concurrence in Gracey:

The impact rule, as applied in Florida, holds that, in the absence of a discernible physical injury or illness flowing from emotional distress or an actual impact, a person cannot recover compensatory damages for mental distress or psychiatric injury. See generally Hagan v. Coca-Cola Bottling Co., 804 So.2d 1234, 1236-38 (Fla.2001). The rationale for the impact rule as a limitation on certain claims is that it serves as a means of “assuring the validity of claims for emotional or psychic damages.” R.J. v. Humana of Florida, Inc., 652 So.2d 360, 363 (Fla.1995). However, this Court’s wariness of psychic damages has not prevented it from carving out exceptions to the impact rule in a variety of circumstances — as the present case demonstrates. See, e.g., Kush v. Lloyd, 616 So.2d 415, 422-23 (Fla.1992); Champion v. Gray, 478 So.2d 17, 19-20 (Fla.1985), receded from on other grounds in Zell v. Meek, 665 So.2d 1048, 1053 (Fla.1995).
In my view, the impact rule reflects an outmoded skepticism for damages resulting from mental injuries. As best summarized by the Illinois Supreme Court:
The requirement [of physical manifestation of emotional distress] is overin-clusive because it permits recovery for mental anguish when the suffering accompanies or results in any physical impairment, regardless of how trivial the injury. More importantly, the requirement is underinclusive because it arbitrarily denies court access to persons with valid claims they could prove if permitted to do so.
Additionally, the requirement is defective because it “encourages extravagant pleading and distorted testimony.” To continue requiring proof of physical injury when mental suffering may be equally recognizable standing alone would force “victimfs] to exaggerate symptoms of sick headaches, nausea, insomnia, etc., to make out a technical basis of bodily injury upon which to predicate a parasitic recovery for the more grievous disturbance, the mental and emotional distress she endured.”
Corgan v. Muehling, 143 Ill.2d 296, 158 Ill.Dec. 489, 574 N.E.2d 602, 608 (1991) (quoting St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649, 652 (Tex.1987)) (citations omitted).
I believe that the traditional foreseeability analysis applicable to negligence claims is the more appropriate framework for a limitation on tort recovery in this State. See McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla.1992) (“The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.”).

837 So.2d at 358-59 (Pariente, J., concurring). As the Second District in this case explained, the foreseeability analysis fits logically into the factual framework presented here.

In reviewing the policy reasons behind the impact rule, we tend to agree [with Rowell that the impact rule should not bar his claim]. There is no question that the Office of the Public Defender established an attorney-client relationship with Mr. Rowell, and thus owed to Mr. Rowell a duty to exercise the degree of reasonable knowledge and skill that lawyers of ordinary ability and skill possess and exercise. See Home Furniture Depot, Inc. v. Entevor AB, 753 So.2d 653 (Fla. 4th DCA 2000). Because this was a criminal matter subjecting Mr. Ro-well to confinement, it was foreseeable that the neglect of such a duty could cause a loss of liberty and attendant emotional and psychological harm. In our estimation, this case is similar to Tanner, 696 So.2d 705, and Kush, 616 So.2d 415, in that the emotional damages are a “parasitic” consequence of conduct that itself is a freestanding tort. In other words, there is a clearly defined duty due to the direct relationship between the attorney and client that, if breached, presents a substantial risk of emotional or psychological harm. Under these circumstances, the application of the impact rule deprives Mr. Rowell of any real remedy for the malpractice of his attorney, despite the duty owed and breached and the foreseeability of the damages caused. See, e.g., Tanner, 696 So.2d at 708 (“It is difficult to justify the outright denial of a claim for the mental pain and anguish which is so likely to be experienced.”). As a practical matter, this result also insulates criminal defense attorneys from all but nominal damage awards when their negligence results in the extended incarceration of their client, absent proof that their dereliction was willful, wanton, or malicious.

Holt, 798 So.2d at 772 (emphasis supplied) (footnotes omitted).

Simply stated, since none of the policy reasons for the impact rule exist in this case, I agree with the majority that damages were properly recoverable. Moreover, as the well-reasoned opinion of the Second District in this case demonstrates, I believe the traditional foreseeability analysis is a more logical approach in these cases. Thus, I would eliminate the arbitrary requirement of the impact rule.

      . The impact rule does not apply to recognized intentional torts that result in predominantly emotional damages, including the intentional infliction of emotional distress, see Eastern Airlines, Inc. v. King, 557 So.2d 574, 576-77 (Fla.1990), defamation, see Miami Herald Publishing Co. v. Brown, 66 So.2d 679, 681 (Fla.1953), and invasion of privacy, see Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 251 (1944). While classification has not been consistent throughout our jurisprudence, intentional torts have been deemed exclusions from, as opposed to exceptions to, the impact rule. See Eastern, 557 So.2d at 579 (Ehrlich, C.J., specially concurring) (reiterating that a physical manifestation of psychological trauma is not required in connection with intentional infliction of emotional distress). But see R.J., 652 So.2d at 363 (discussing Eastern in the context of exceptions to the impact rule). There is, however, no cognizable action for simple negligence resulting in psychological trauma, alone, unless the case fits within one of the narrow exceptions to the impact rule. See R.J., 652 So.2d at 363; Brown v. Cadillac Motor Car Div., 468 So.2d 903, 904 (Fla.1985).

      . As the Second District in this case observed regarding confusion as to whether the impact rule describes the need for a primary impact or for physical injury from psychological trauma:
      In Florida, the combination of these two principles has been called the "impact rule” or “impact doctrine.” This results in some confusion as to whether "impact” refers to a physical impact upon the plaintiff at the time of the accident, or the physical injury a plaintiff may suffer after psychological trauma. See, e.g., Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992) (describing the impact rule as "preclud[ing] the recovery of damages for negligent infliction of emotional distress unless the emotional distress arises directly from the physical injuries sustained by the plaintiff in the impact”). In fact, the latter analysis that requires the plaintiff manifest some physical injury as a result of the emotional trauma is commonly known as the “zone of danger” rule, as it requires the plaintiff to be within the “zone of danger” created by the defendant's negligence. See Davies, Direct Actions for Emotional Harm: Is Compromise Possible?, 67 Wash. L.Rev. 1, 8 (Jan.1992).

        Holt, 798 So.2d at 770 n. 1.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas C. THIBAULT, Appellant, v. STATE of Florida, Appellee.
    No. SC01-2508.
    Supreme Court of Florida.
    June 26, 2003.
    Mark Wilensky of Dubiner & Wilensky, P.A., West Palm Beach, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Debra Rescigno, Assistant Attorney General, West Palm Beach, FL, for Appel-lee.
   PER CURIAM.

This is an appeal from death sentences imposed on Thomas Thibault after he pled guilty to three counts of first-degree murder. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Because the record fails to reflect that Thibault expressly waived his right to a jury for the penalty phase, we are compelled to reverse the sentences of death based on our longstanding precedent in Lamadline v. State, 303 So.2d 17 (Fla.1974).

Thibault entered an open plea to the three murder counts and one count of armed robbery, with no agreement as to the sentence. The validity of that guilty plea, entered after a full and complete plea colloquy, is not before us. At the time of the entry of the guilty plea, the trial court, prosecutor, and defense counsel discussed Thibault’s right to a jury advisory sentence during the penalty phase:

MS. SKILES (PROSECUTOR): ... [M]y understanding of what the defense is hoping to do here today is that the defendant is going to plead guilty and then we will come back for an allocution hearing and then for Your Honor without a jury, to make the determination about what the sentence would be.
THE COURT: All right.
And also with both lawyers, I want your response to this: He is, I am sure, legally entitled to a full phase two trial with or without a jury. And is he waiving that day or does he want that? Has that been discussed by the lawyers; and have you discussed it with the client? That is a whole bunch of questions, I realize.
MR. GARCIA (DEFENSE ATTORNEY): I have had quite a few conversations with Mr. Thibault over the course of the last two weeks. We have discussed many issues, one being obviously if we were to go forward with just entering a plea of guilty to the Court, we would have the right to either have a phase two with or without a jury; and it was my understanding that we would be requesting a phase two hearing with just Your Honor.
And we have been over this and discussed this. Mr. Massa [phase two counsel] is relatively new to this case, as far as the preparations he would need to make to be prepared for phase two. I believe he has been on vacation probably no more than a month. I think a month is probably even stretching it.
So this would be a decision that the three of us would make at some point in time, but I have had preliminary discussions with Mr. Thibault. This is something we had already decided we will go forward and do, if it comes down to that.

(Emphasis supplied.) Thibault appeared for status cheeks and scheduling conferences on six occasions between the change-of-plea hearing and the commencement of the penalty phase on May 30, 2001. There was no discussion of the waiver of a penalty-phase jury during any of these proceedings, including the penalty-phase hearing itself. The trial court sentenced Thibault to death for each of the murders, and imposed a sentence of life imprisonment for the armed robbery.

Section 921.141(1), Florida Statutes (2002), governs the procedure to be followed in the penalty phase of a capital trial. It provides, in pertinent part: “If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose, unless waived by the defendant.” In 1974, shortly after the enactment of section 921.141, this Court stated that the defendant’s right to a penalty-phase jury is

an essential right of the defendant under our death legislation, though it may be waived. The question before this Court is whether the appellant has waived this right. We cannot presume a waiver where the record is silent, Boykin v. Alabama, [895 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ]; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); and the failure to either object or request the jury sentencing procedure cannot constitute such a waiver. We hold that the record must affirmatively show that the defendant voluntarily and intelligently waived the right to have a sentencing jury render its opinion on the appropriateness of the death penalty, granted him by the express provision of § 921.141, F.S.

Lamadline, 303 So.2d at 20 (emphasis supplied). In Lamadline, we vacated the sentence of death because there was no express waiver of the advisory jury. Id.

The exchange between the trial court and the attorneys for the State and Thibault during the August, 2000, change-of-plea hearing does not meet the threshold established in Lamadline for the existence of a waiver of the right to a penalty-phase jury. Consistent with Lamadline, we cannot presume a waiver from a record that contains nothing more definitive than a representation by counsel that the defense anticipated waiving a penalty-phase jury but that no final decision had been made. In so holding, we distinguish our decision in Holmes v. State, 374 So.2d 944 (Fla.1979), in which we concluded that “an expressed waiver by counsel in the presence of the defendant ... was sufficient.” Id. at 949 (emphasis supplied). Here, unlike Holmes, the exchange between defense counsel and the trial court during the change-of-plea hearing did not establish an express and unequivocal waiver of the right to a penalty-phase jury.

The State, relying on Griffin v. State, 820 So.2d 906 (Fla.2002), asserts that Thi-bault did not preserve this error for appeal by first raising it in the trial court. In Griffin, we held that a challenge to the voluntariness of a defendant’s waiver of the right to a penalty-phase jury must be preserved in the trial court through a motion to withdraw the waiver. See id. at 913; see also Spann v. State, 28 Fla. L. Weekly S293, S295, — So.2d -, 2003 WL 1740646 (Fla. April 3, 2003) (relying on Griffin to hold that a challenge to the waiver of the sentencing jury was not preserved for appeal because Spann did not move to withdraw the waiver).

We disagree with the State, and hold that Lamadline, rather than Griffin, controls in this situation. Although Griffin requires a defendant to first challenge the voluntariness of a waiver of the advisory jury in the trial court before the issue is raised on appeal, this obligation applies only when an express waiver has been made. Griffin does not compel a defendant who has not waived the penalty-phase jury to either move to withdraw the nonexistent waiver or to object to the absence of a jury during the penalty phase.

Accordingly, we are constrained by La-madline, 303 So.2d at 17, to reverse Thi-bault’s death sentences and remand for a new penalty phase before a jury unless the defendant knowingly and intelligently waives that right.

It is so ordered.

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

      . Our disposition of that issue renders Thi-bault's remaining claim moot.

      . We note that in Griffin, we requested the Florida Bar Criminal Procedure Rules Committee to propose a rule to guide trial judges during a colloquy on a defendant’s waiver of the right to a sentencing jury. See 820 So.2d at 913 n. 9. An on-the-record colloquy between the court and the defendant would have prevented the error necessitating reversal of the death sentences in this case.


author: LEWIS, J. CANTERO, J., QUINCE,

text:
    Marvin NETTLES, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-1523.
    Supreme Court of Florida.
    June 26, 2003.

      Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer and Archie F. Gardner, Jr., Assistant Public Defenders, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Karen M. Holland, Assistant Attorney General, Tallahassee, FL, for Respondent.
   LEWIS, J.

We have for review the decision in Nettles v. State, 819 So.2d 243 (Fla. 1st DCA 2002), which certified conflict with the decisions in State v. Wilson, 793 So.2d 1003 (Fla. 2d DCA 2001), and Irons v. State, 791 So.2d 1221 (Fla. 5th DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Initially, we note that although the First District has certified the existence of conflict, as more fully developed herein, our analysis leads us to conclude that the conflict is more apparent, as opposed to an actual conflict between the district courts of appeal. In our view, Wilson and Irons addressed the correlation between the Prison Releasee Reoffender Punishment Act (PRRPA) and the sentencing guidelines, see Wilson, 793 So.2d at 1004; Irons, 791 So.2d at 1224, while Nettles addressed the interaction of the PRRPA with the Criminal Punishment Code (CPC), and, therefore, we are presented with an apparent conflict. We acknowledge that this factual scenario is very likely to arise again, and, therefore, we elect to exercise our discretion to resolve this issue now, rather than leave the trial courts with conflicting guidance as to how such offenders should be sentenced.

The issue presented in Nettles is whether it is permissible for a defendant to be sentenced under both the PRRPA and the CPC. This issue arises due to that which is argued to be somewhat conflicting language in provisions of both statutory schemes. In relevant part, the PRRPA provides:

If the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison re-leasee reoffender. Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows:
d. For a felony of the third degree, by a term of imprisonment of 5 years.

§ 775.082(9)(a)3., Fla. Stat. (2000) (emphasis added). The PRRPA further states:

(c) Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law.
(d) 1. It is the intent of the Legislature that offenders previously released from prison who meet the criteria in paragraph (a) be punished to the fullest extent of the law and as provided in this subsection....

§ 775.082(9)(c)-(d)l., Fla. Stat. (2000). Further complicating the issue is a provision from the CPC which states, “If the lowest permissible sentence under the code exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the code must be imposed.” § 921.0024(2), Fla. Stat. (2000).

The First District’s decision in Nettles provides the relevant facts:

On July 30, 2001, [Marvin Nettles] entered a plea to two counts of attempted lewd and lascivious conduct, a third-degree felony, in exchange for concurrent PRRPA and CPC sentences of 66.4 months. [Nettles] does not dispute that he qualifies as a prison releasee reoffen-der. During the plea colloquy, the judge adequately advised [Nettles] that the PRRPA designation would cause him to serve the entire sentence day-for-day. See § 775.082(9)(b), Fla. Stat. (2000). Nevertheless, [Nettles] subsequently filed a Rule 3.800(b)(2) motion to correct sentencing error, alleging that his sentence was illegal pursuant to State v. Wilson, 793 So.2d 1003 (Fla. 2d DCA 2001), and Irons v. State, 791 So.2d 1221 (Fla. 5th DCA 2001). The trial court denied the motions:
The Defendant makes one claim of sentencing error. He alleges that the trial court erred in sentencing the Defendant under both the Prison Releas-ee Reoffender Punishment Act (PRRPA) and the Criminal Punishment Code (CPC) sentencing guidelines. The Defendant cites two very recent decisions from the Second and Fifth District Courts of Appeal in support of his instant motion. This Court finds that the Defendant’s argument is without merit.

Nettles, 819 So.2d at 243-44.

Under these facts, where a defendant’s minimum CPC sentence is greater than the sentence provided for by the PRRPA, the sections of the PRRPA excerpted above pose an interpretation concern. While section 775.082(9)(c) authorizes a greater sentence under the habitual offender statute, or any other provision of law, section 775.082(9)(a)3. specifically excludes sentencing under the guidelines and mandates a five-year sentence. However, here, if the defendant is sentenced to only five years pursuant to the PRRPA, his sentence would not be to the fullest extent of the law as authorized by the CPC, and intended by the Legislature under section 775.082(9)(d)l. of the PRRPA.

The facts presented in Wilson are very similar to the facts presented in Nettles. In Wilson, the defendant was eligible for sentencing under the PRRPA, but his minimum sentence under the sentencing guidelines at that time was greater than the sentence provided in the PRRPA. See 793 So.2d at 1004. Noting the somewhat conflicting provisions of the PRRPA, the Second District concluded that “the clear and unambiguous meaning of the [PRRPA] ” could be ascertained through the language of the PRRPA providing, “such defendant is not eligible for sentencing under the guidelines.” Id. at 1005. Following this reasoning, the district court concluded that “a defendant sentenced under section 775.082(8) cannot be sentenced under the sentencing guidelines and must be sentenced according to the provisions of the PRRPA.” Id.

The next step in the district court’s analysis was to determine whether the provision of the PRRPA authorizing the imposition of a greater sentence under either the habitual offender statute or “any other provision of law” prevailed over the PRRPA’s exclusion of a sentence pursuant to the guidelines. See id. The court examined the issue under two principles of statutory construction. First, the court held that a general provision cannot override a specific exclusion. See id. at 1006. Therefore, the general language of “any other provision of law” could not supersede the specific provision excluding sentencing under the guidelines. See id. Second, the court applied the principle of ejusdem gen-eris, which provides that “where an enumeration of specific things is followed by some more general word, the general word will usually be construed to refer to things of the same kind or species as those specifically enumerated.” Id. (quoting Green v. State, 604 So.2d 471, 472 (Fla.1992)). The Second District concluded that under this principle, “it would seem that the phrase ‘any other provision of law should more appropriately be construed to mean other penalty enhancement statutes similar to [the habitual offender statute] rather than the general sentencing provisions of the sentencing guidelines.” Id.

Having determined that the provision of the PRRPA which specifically precludes sentencing under the guidelines should take precedence, the Wilson court held that the defendant should be sentenced only pursuant to the mandatory sentence provided by the PRRPA, and could not be subject to the greater sentence under the guidelines. See id. The court recognized that its holding was probably contrary to the legislative intent of the PRRPA, but reasoned that because the language of the statute created an ambiguity, it was necessary to interpret the ambiguity in the manner most favorable to the defendant. See id.

The Fifth District, in Irons, followed the holding and reasoning of the Wilson court when presented with the identical issue. As in Wilson, the Fifth District also noted that the result probably did not comport with the legislative intent. The court acknowledged:

We agree with Judge Stringer’s well-reasoned opinion in Wilson, although we also think the Legislature probably did not intend this result. No doubt in writing this statute it contemplated that the mandatory prison releasee reoffender sentences would exceed the guidelines sentences. However, in this case as well as in Wilson, that was not the situation because of the extensive prior criminal records of the defendants. This may be an issue the Legislature should consider revising in the future, if the results reached in this case and Wilson are not what was intended.

Irons, 791 So.2d at 1224-25.

Contrary to the holdings in Wilson and Irons, the Nettles court determined that Nettles’ sentence of 66.4 months was not illegal because, according to the First District’s analysis, the sentence was authorized by both the CPC and the PRRPA. See Nettles, 819 So.2d at 247. Specifically, the court reasoned:

We read the subsections at issue in pari materia^ and in light of the legislative direction that offenders previously released from prison “be punished to the fullest extent of the law and as provided in this subsection .... ” § 775.082(9)(d)l., Fla. Stat. (2000). Accordingly, once a defendant is properly designated as a prison releasee reoffen-der, the defendant would not be barred from a CPC sentence greater than the mandatory sentence as specified in the PRRPA.

Id. at 245.

In analyzing the provision of the PRRPA that states, “Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines,” § 775.082(9)(a)3., Fla. Stat. (2000), the First District reasoned that by using the word “eligible,” the Legislature referred to a potential benefit that a defendant could receive by being sentenced under the guidelines as opposed to the PRRPA. See 819 So.2d at 245. Clearly, under the facts presented here, Nettles would not benefit from being sentenced under the CPC, but would suffer a detriment in the form of a longer sentence. Therefore, the First District reasoned that this provision actually supports the court’s holding that a defendant can be sentenced to a term greater than that provided under the PRRPA. See id.

Further, the First District also relied upon the decisions of State v. Cotton, 769 So.2d 345 (Fla.2000), and Grant v. State, 770 So.2d 655 (Fla.2000), in which this Court referred to the PRRPA as a “mandatory minimum statute,” which establishes a sentencing “floor,” and allows for more severe punishment as authorized by law. See 819 So.2d at 246. The district court concluded:

Respectfully, we do not believe that Cotton and Grant support the result reached in Wilson and followed by Irons. In our view, the PRRPA sentence should be viewed as a mandatory minimum of five years. Any remaining portion of [Nettles’] sentence would be served pursuant to the CPC.

Id. The district court noted that in both Cotton and Grant this Court “expressly recognized that a greater sentence may be imposed pursuant to either the habitual offender statute or any other provision of law, and the [C]ourt did not see fit to limit the ‘any other provision of law’ language.” Id. Therefore, the First District reasoned that a sentence pursuant to both the PRRPA and the CPC is consistent with the language of the PRRPA and our holdings in Cotton and Grant. See id.

Finally, in resolving the apparent conflict created by the provisions of the PRRPA, the First District enumerated an independent basis for its decision by holding that section 775.082(9)(a)3., which specifically excludes sentencing under the guidelines, is not applicable to sentencing under the CPC. The court noted that the CPC repealed and replaced the guidelines for all crimes committed after October 1, 1998, yet the guidelines are still applicable to those crimes committed before the effective date. See id. at 247. The court reasoned that the Legislature, by including the language about the sentencing guidelines, “did not contemplate that it was enacting a provision that might be construed by some as barring a CPC sentence.” Id.

Reflecting the court’s holding that Nettles’ sentence was permissible under both the PRRPA and the CPC, the court remanded to the trial court with instructions that the trial court correct the sentence to reflect that the first 60 months of Nettles’ sentence would be served pursuant to the PRRPA, while the remaining 6.4 months would be served under the CPC. See id. at 247. The court reached a different decision than the courts in both Wilson and Irons; therefore, it certified conflict with those decisions to this Court. See id. at 243.

In our view, the provisions of the PRRPA which require interpretive analysis here can be reconciled. Therefore, we conclude that a defendant may be sentenced pursuant to both the PRRPA and the CPC. Thus, the sentence agreed to by Nettles, imposed by the trial court, and affirmed by the First District Court of Appeal was a legal sentence.

We reject the contention that section 775.082(9)(a)3., which provides that a defendant eligible for sentencing under the PRRPA “is not eligible for sentencing under the sentencing guidelines,” renders Nettles’ sentence illegal. In Jones v. State, 813 So.2d 22 (Fla.2002), we recognized that the establishment of the Criminal Punishment Code in 1998 made substantial changes relating to the sentencing guidelines. See id. at 25. Under the former sentencing guidelines, a narrow range of permissible sentences was determined through a strict mathematical formula. See § 921.0014(2), Fla. Stat. (2000). It was then within the judge’s discretion to sentence the defendant within that narrow range. In contrast, under the now-applicable CPC, “[t]he permissible range for sentencing shall be the lowest permissible sentence [as determined by the number of total sentencing points] up to and including the statutory maximum.” § 921.0024(2), Fla. Stat. (2000). Conceptually, the CPC and the former sentencing guidelines are not synonymous, and, therefore, the PRRPA’s reference to the sentencing guidelines in section 775.082(9)(a)3. does not, as the dissent maintains, forbid sentencing under the CPC.

Notably, if we were to follow the logic of the dissent and hold that Nettles could only be sentenced to the 60 months provided by the PRRPA, the result would be a sentence less than that which he would have received, namely 66.4 months, had he not been sentenced as a prison releasee reoffender. Such an interpretation and application would completely ignore the intent of the Legislature in enacting the PRRPA. The Legislature unquestionably intended that those sentenced under the PRRPA would “be punished to the fullest extent of the law.” § 775.082(9)(d)l., Fla. Stat. (2000). We have repeatedly held that “ ‘[w]hen construing a statutory provision, legislative intent is the polestar that guides’ the Court’s inquiry. Legislative intent is determined primarily from the language of a statute.” State v. Rife, 789 So.2d 288, 292 (Fla.2001) (quoting McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998)). As Nettles does not contest that he qualifies for sentencing as a prison releasee reoffender, his negotiated sentence of 66.4 months, with the first 60 months being served pursuant to the PRRPA and the remaining 6.4 months served under the CPC, effectuates the Legislature’s intent in this case and comports with the applicable statutory provisions.

The First District properly relied upon our decisions in Cotton and Grant in affirming Nettles’ sentence. In Cotton, we specifically held that the PRRPA “establishes a mandatory minimum sentencing scheme” and the act “is not unconstitutional on its face as violative of separation of powers principles.” 769 So.2d at 354. Further, we noted:

[E]ven when the Act is properly viewed as a mandatory minimum statute, its effect is to establish a sentencing “floor.” If a defendant is eligible for a harsher sentence “pursuant to [the habitual offender statute] or any other provision of law,” the court may, in its discretion, impose the harsher sentence.

Id. (quoting § 775.082(8)(c), Fla. Stat. (1997)). Finally, we enumerated specific findings that were contemplated by the Legislature:

In passing the Act, the Legislature found that (1) recent court decisions have mandated the early release of violent felony offenders; (2) the people of the State and its visitors deserve public safety and protection from violent felony offenders who have previously been sentenced to prison and who continue to prey on society by reoffending; and (3) “the best deterrent to prevent prison releasees from committing future crimes is to require that any releasee who commits new serious felonies must be sentenced to the maximum term of incarceration allowed by law, and must serve 100 percent of the court-imposed sentence.”

Id. at 355. Clearly, we have determined that the sentence provided by the PRRPA is not a mandatory sentence which must be imposed upon an eligible defendant. Rather it is a sentencing “floor,” which a judge may exceed if authorized by another provision of the law, such as the CPC.

We reiterated the rationale employed in Cotton in our decision in Grant. In Grant, a defendant had been sentenced to fifteen years as a habitual felony offender, with a mandatory minimum term of fifteen years as a prison releasee reoffender. See 770 So.2d at 657. The defendant challenged his sentence, claiming it violated the prohibition against double jeopardy. See id. Relying on Cotton, we again held that the PRRPA provides a mandatory minimum sentence, and, therefore, “the imposition of an applicable longer, concurrent term of imprisonment with a [PRRPA] mandatory minimum sentence does not violate double jeopardy.” Id. at 658. We also relied on the intent of the Legislature in rendering our decision in Grant, reasoning that “the Legislature’s intent both to provide a mandatory minimum term of imprisonment pursuant to the [PRRPA] and to allow for imposition of the greatest sentence authorized by law is clear.” Id. at 659.

Applying the principles stated in Cotton and Grant, in addition to the statutory provisions, we again hold that the PRRPA establishes a mandatory minimum sentence, a “sentencing floor,” and no provision of the PRRPA prevents a court “from imposing a greater sentence of incarceration as authorized by law.” § 775.082(9)(c). Here, Nettles’ mandatory minimum PRRPA sentence was 60 months, while his minimum sentence under the CPC was 66.4 months. Therefore, Nettles’ sentence of 66.4 months, with 60 months being served under the PRRPA and 6.4 months being served pursuant to the CPC, is a legal sentence. As we have held, it is authorized by the PRRPA, but more importantly, it is mandated by the CPC. The CPC provides, “If the lowest permissible sentence under the [CPC] exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the [CPC] must be imposed.” § 921.0024(2), Fla. Stat. (2000). Under this provision, the sentencing court had no option but to sentence Nettles to 66.4 months in prison.

Finally, we note that Nettles’ argument pertaining to the application of the rule of lenity is misplaced. The rule of lenity provides, “The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021(1), Fla. Stat. (2000). Although this rule is applicable to sentencing provisions, see Rife, 789 So.2d at 294, it is not necessary for us to employ the rule here because we do not agree that the provisions of the PRRPA create an ambiguity or generate differing reasonable constructions. See Seagrave v. State, 802 So.2d 281, 291 (Fla.2001) (holding that rule of lenity is not applicable where interpretation offered by defendant is not a reasonable construction). Although one may find differing results with regard to PRRPA and guideline sentences in Wilson and Irons, and the PRRPA and CPC sentences as determined by the First District here, such does not render the applicable provisions ambiguous. As we noted in Seagrave, the fact that appellate courts may differ with regard to the application of statutory provisions does not necessarily render a statute ambiguous. See id. at 291 n. 15. Here, having determined that the PRRPA’s reference to the former sentencing guidelines does not restrict sentencing under the CPC, and further utilizing legislative intent, we are not left with an ambiguous statute. Therefore, application of the rule of lenity is not necessary. Nettles was properly and legally sentenced pursuant to both the PRRPA and the CPC.

The decision of the First District Court of Appeal is approved, and to the extent they are inconsistent with this opinion, the Wilson and Irons decisions are disapproved.

It is so ordered.

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

CANTERO, J., concurs specially with an opinion, in which PARIENTE and BELL, JJ., concur.

QUINCE, J., dissents with an opinion, in which ANSTEAD, C.J., concurs.

CANTERO, J.,

concurring specially.

I agree with the majority opinion. I write, however, to caution that the statement in the last paragraph expressing a qualified disapproval of Wilson and Irons should not be read as disapproval of the results in those cases. As the majority opinion recognizes, Nettles involved a different issue than did Wilson and Irons. The issue here is whether a defendant can be sentenced under both the PRRPA and the CPC. See majority op. at 488-89. In the latter two cases the issue was whether a defendant can be sentenced under both the PRRPA and the sentencing guidelines. Wilson, 798 So.2d at 1004; Irons, 791 So.2d at 1224. The difference is critical because the PRRPA specifically prohibits application of the sentencing guidelines, not the CPC. The majority correctly concludes that no actual conflict exists between the three cases.

The statutory language raising the issue in all the cases comes from the PRRPA’s statement that a defendant proven to be a prison releasee reoffender “is not eligible for sentencing under the sentencing guidelines,” § 775.082(9)(a)3., Fla. Stat. (2000), and the PRRPA’s contrasting statements that the PRRPA does not prevent the imposition of a greater sentence under “any other provision of law” and that each defendant should be punished “to the fullest extent of the law.” § 775.082(9)(c)-(d)l., Fla. Stat. (2000). The First District Court of Appeal in Nettles correctly concluded that the PRRPA’s exclusion of the sentencing guidelines did not imply a similar exclusion of the CPC. See 819 So.2d at 247. As the district court explained, the law adopting the CPC expressly repealed the sentencing guidelines, leaving them in effect for crimes committed before Octo'ber 1, 1998, and established the CPC as the new sentencing scheme. Id. (citing ch. 97-194, §§ 1, 2, at 3674, Laws of Fla.). The timing of the two enactments further supports the inference that the Legislature knowingly intended only to refer to the sentencing guidelines in section 775.082(9)(a)3. The Legislature created both the CPC and the PRRPA in the same session. See ch. 97-194, at 3674, 3728, Laws of Fla. (creating CPC); ch. 97-239, at 4398, 4404, Laws of Fla. (creating PRRPA). Therefore, when the Legislature excluded application of the sentencing guidelines in the PRRPA, it knew that it was simultaneously, but in a different bill, repealing the sentencing guidelines and replacing them with a different sentencing scheme, the CPC. See Nettles, 819 So.2d at 247 (“The Legislature therefore did not contemplate that it was enacting a provision that might be construed by some as barring a CPC sentence when it simply noted that a prison releasee reoffender would not be eligible for a guidelines sentence.”).

The district courts in Wilson and Irons correctly found that a defendant cannot be sentenced under both the sentencing guidelines and the PRRPA because the PRRPA specifically precludes application of the guidelines. See § 775.082(9)(a)S., Fla. Stat. (2000); Wilson, 793 So.2d at 1006; Irons, 791 So.2d at 1224-25. In Wilson, however, the Second District Court of Appeal went further, determining that the reference in section 775.082(9)(c) to “any other provision of law” applies only to enhanced penalty provisions, such as the habitual offender statute, and not to a general sentencing statute. 793 So.2d at 1006; accord Irons, 791 So.2d at 1224. This Court does not understand the phrase “any other provision of law” to be so limited. See Grant v. State, 770 So.2d 655, 659 (Fla.2000) (noting that the clear legislative intent of the PRRPA is to provide a mandatory minimum term and allow the “imposition of the greatest sentence authorized by law”); State v. Cotton, 769 So.2d 345, 354 (Fla.2000) (noting that the PRRPA establishes a sentencing “floor” and a defendant remains eligible for harsher sentencing under “any other provision of law”); see also Nettles, 819 So.2d at 245-46 (disagreeing with limitation of this phrase in Wilson and Irons).

Accordingly, the results in all three cases — Nettles, Wilson, and Irons — are correct. The majority’s limited disapproval of Wilson and Irons applies only to part of their analyses.

PARIENTE and BELL, JJ. concur.

QUINCE,

dissenting.

I dissent from the majority’s determination that a prison releasee reoffender may be sentenced under both the Prison Re-leasee Reoffender Punishment Act (PRRPA) and the Criminal Punishment Code (CPC); instead I would follow the reasoning of the district courts in State v. Wilson, 793 So.2d 1003 (Fla. 2d DCA 2001), and Irons v. State, 791 So.2d 1221 (Fla. 5th DCA 2001), and find that a defendant may not be sentenced under both of these provisions. I reach this conclusion because the CPC is the functional equivalent of the sentencing guidelines for all crimes committed after October 1, 1998. As the majority points out, the pre-code sentencing guidelines are still applicable to crimes committed before October 1, 1998. On that date the prior guidelines were replaced by other guidelines which are now referred to as the CPC. The CPC is nonetheless a guideline for the calculation of sentences for crimes committed after October 1, 1998. The fact that the name has changed does not change the fact that the Legislature specifically provided for use of the PRRPA and not guidelines where the defendant qualifies for PRRPA treatment.

Moreover, such an interpretation comports with the overall purpose of the PRRPA, that is, having the defendant serve the harsher sentence. While in the instant case the number of months pursuant to the PRRPA is somewhat shorter than the number of months under the CPC, the defendant will serve one hundred percent of the time imposed under the PRRPA. That is a harsher sentence than one based solely on the guidelines/CPC.

For these reasons I would find that the defendant’s sentence imposed under both the PRRPA and the CPC is illegal and would remand this case for sentencing under the PRRPA only.

ANSTEAD, C.J., concurs.

      . § 775.082(9), Fla. Stat. (2000).

      . §§ 921.002-.0027, Fla. Stat. (2000).

      . Section 775.084, referred to in section 775.082(9)(c), is commonly known as the habitual offender statute.

      . Resolution of this issue, i.e., under which statute or statutes Nettles should be sentenced, is imperative because the PRRPA requires that a defendant serve one hundred percent of his sentence. As a result, a defendant sentenced under the PRRPA is not eligible for gain time, see § 775.082(9)(b), whereas a defendant is eligible for gain time if sentenced under the CPC.

      . As noted above, Wilson involved the interaction between the PRRPA and the sentencing guidelines, while Nettles examined the relationship between the PRRPA and the CPC.

      . Wilson involved the 1997 version of the PRRPA, which was then codified in section 775.082(8). While the PRRPA was subsequently renumbered as section 775.082(9) in 1999, the language remained the same.

      .Notably, the Second District held that our decision in Grant v. State, 770 So.2d 655 (Fla.2000), which authorized the trial court to impose a PRRPA sentence and an habitual offender sentence where the habitual offender sentence was greater, was not applicable to the issue presented in Wilson. See Wilson, 793 So.2d at 1005 n. 1. The court reasoned that “application of the habitual felony offender statute is specifically authorized in [the PRRPA], and unlike \Wilson], there is no contrary provision prohibiting a prison releas-ee reoffender from being sentenced as a habitual felony offender.” Id.

      . As in Wilson, Irons presented the issue of the relationship between the PRRPA and the sentencing guidelines, as opposed to the CPC. Irons also interpreted the PRRPA as codified in 1997, as opposed to the identical, yet renumbered, 2000 version of the statute.

      . Although we held that the sentence did not violate double jeopardy, we did nevertheless determine that the defendant's sentence was illegal. See Grant, 770 So.2d at 659. We reasoned that because the PRRPA " 'only authorizes the court to deviate from the [Act’s] sentencing scheme to impose a greater sentence of incarceration,’ a trial court is 'without authority to sentence [a defendant to an equal sentence] under the habitual felony offender statute,’ even where such sentence is imposed concurrently with the [PRRPA] sentence. Thus, the trial court erred in imposing two concurrent, equal sentences in this case, not because such sentencing violated double jeopardy, but because it is not authorized by the Act.” Id. (quoting Walls v. State, 765 So.2d 733, 734 (Fla. 1st DCA 2000)).

      . A comparison of the sentencing guidelines and the CPC indicates that the same terms are used in both and defined in an identical manner. Compare § 921.0011 with § 921.0021. Moreover, the same offense severity ranking chart is used in both sections of the statutes. Compare § 921.0012 with § 921.0022.


text:
    FLORIDA BOARD OF BAR EXAMINERS re O.C.M.
    No. SC02-2195.
    Supreme Court of Florida.
    June 26, 2003.
    Richard A. Greenberg, Tallahassee, FL, for Petitioner.
    Michael J. Keane, Chair, Eleanor Mitchell Hunter, Executive Director, and Thomas A. Pobjecky, General Counsel, Tallahassee, FL, for Florida Board of Bar Examiners, Respondent.
   PER CURIAM.

Petitioner O.C.M. asks this Court to review the recommendations of the Florida Board of Bar Examiners (Board). We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons expressed below, we- approve the Board’s recommendation that O.C,M. not be admitted to The Florida Bar at this time and that he be disqualified from reapplying for admission for three years.

On April 28, 2000, O.C.M. executed an application for admission to The Florida Bar. The Board’s background investigation revealed certain matters concerning O.C.M.’s character and fitness. On October 5, 2001, formal specifications were served upon O.C.M.

Specification 1 alleged-that O.C.M. altered letters of recommendation written for him by two attorneys at a law firm at which O.C.M. had been employed to falsely reflect that he had been employed as a paralegal rather than á runner/messenger, and that he submitted the altered letters to various law schools to which he was applying for admission. Specification 2 alleged that O.C.M. falsely stated on an application for admission to the School of Law at Southern. Illinois University at Carbondale that he had been employed for six months as a full-time paralegal with the law firm. Specification 3 alleged that on his application for admission to the University . of Orlando School of Law (now Barry University School of Law), O.C.M. improperly failed to disclose his attendance at two schools and failed to disclose five prior jobs, including his employment with the law firm. Specification 3 also alleged that in a -letter to the dean of Barry University School of Law to correct the inaccuracies in his original application, O.C.M. admitted altering the letters of recommendation, but falsely claimed that he had changed only one word. Specification 4 alleged that on his application for admission to The Florida Bar, O.C.M. provided a similar false and misleading explanation of his alteration of the letters of recommendation. Specification 5 alleged that at his investigative hearing on July 14, 2001, O.C.M. gave a false or misleading explanation of his alteration of the letters of recommendation in that he again claimed he changed just one word on the letters, but then later admitted that he changed more than one word and had, in fact, completely retyped the body of the letters. Specification 5 also alleged that O.C.M. gave testimony which was false, misleading or lacking in candor at his investigative hearing in that he falsely claimed that the reason for the omissions in the employment history on his application for admission to Barry University was that he had copied that history from an application he had previously submitted to an agency of the State of Florida. The specification alleged that this explanation was false because the employment history listed on the agency application was not the same as that listed on the Barry University application. Specification 6 alleged that on a 1995 State of Florida Employment Application, O.C.M. improperly failed to disclose his attendance at two colleges and failed to disclose four prior jobs.

After a formal hearing, the Board found that all of the specifications had been proven and were disqualifying for admission to the bar. The Board also found that O.C.M. displayed a continuing lack of candor during his formal hearing testimony. Based on this finding and the proven allegations of Specifications 4 and 5 dealing with O.C.M.’s lack of candor on his bar application and in his investigative hearing testimony, the Board concluded that O.C.M. had made material misrepresentations or false statements in the bar application process; thus, pursuant to rule 3-23.6(d) of the Rules of the Supreme Court Relating to Admissions to the Bar, the Board recommended that O.C.M. be disqualified from reapplying for admission for three years.

O.C.M. does not dispute any of the Board’s factual findings or its recommendation that he not be admitted to the bar at this time. He challenges only the Board’s recommendation that he be disqualified from reapplying for admission for three years.

The Rules of the Supreme Court Relating to Admissions to the Bar provide for a standard two-year period following denial of admission during which an applicant may not reapply. See Fla. Bar Admiss. R. 2-13.5. Rule 3-23.6(d), however, permits the Board, within its discretion, to recommend an extended disqualification period in cases involving material misrepresentations in the application process. Here, the Board found that on his bar application, O.C.M. gave a false and misleading explanation of his conduct concerning the falsified recommendation letters and that he testified falsely as to this incident at both his investigative and formal hearings. Specifically, the Board found that O.C.M. testified falsely at his investigative hearing when he claimed that he changed only one word of the letters. The Board also rejected as unworthy of belief O.C.M.’s testimony at his formal hearing that despite the fact that the letters had clearly been completely retyped and changed in numerous ways, he only remembered changing one word.

O.C.M. does not challenge the factual basis for the Board’s recommendation; rather, he argues that the conduct is not serious enough to warrant a three-year disqualification. We disagree. Any material omission or misrepresentation made in the application process for admission to The Florida Bar is a serious matter. Here, O.C.M. engaged in a pattern of dishonesty and half-truths in attempting to explain a very serious instance of misconduct on his part — the falsification of letters of recommendation which he then submitted as part of his application for admission to various law schools. Such a lack of candor by an applicant seeking admission to The Florida Bar is intolerable. O.C.M.’s conduct clearly falls within rule 3 — 23.6(d), and the Board was justified in recommending an extended disqualification period.

Accordingly, we approve the Board’s recommendation that O.C.M. be denied admission to The Florida Bar at this time. Further, in light of O.C.M.’s material misrepresentations in the bar admission process, we approve the Board’s recommendation that O.C.M. be disqualified from reapplying for admission for three years.

It is so ordered.

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

      . To the extent that O.C.M. takes issue with the Board’s rejection of his formal hearing testimony as unworthy of belief, this is a question of credibility — a question upon which we defer to the Board. See Fla. Bd. of Bar Exam'rs re R.L.W., 793 So.2d 918, 923 (Fla.2001) (stating that the Court usually defers to the Board’s findings on a witness’s credibility because the Board has had the opportunity to observe the witness during testimony).