text:
    Martha M. TOPPS, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-1085.
    Supreme Court of Florida.
    Jan. 22, 2004.

      Martha M. Topps, pro se, North Laud-erdale, FL, for Petitioner.
    No appearance, for Respondent.
   PER CURIAM.

Petitioner Martha M. Topps petitions this Court for writ of mandamus. We have jurisdiction. See art. V, § 3(b)(8), Fla. Const.

As further discussed below, we deny the petition based on the application of the doctrine of res judicata but hold that henceforth, for purposes of uniformity, unelaborated denials entered in connection with all extraordinary writ petitions filed in any Florida court shall not be considered decisions on the merits which would bar the litigant from presenting the same or a substantially similar issue on appeal or by a subsequent writ petition, or by other means, in the same or a different Florida court.

FACTS

On June 12, 2001, Martha M. Topps filed a petition for writ of mandamus in this Court challenging the Stop Turning Out Prisoners Act, which amended various statutes to require that inmates serve eighty-five percent of their criminal sentences in prison. This was accomplished, for the most part, by limiting the amount of gain time that could be applied to an inmate’s sentence to reduce the amount of time the inmate would actually remain in prison. See § 944.275(4)(b)3, Fla. Stat. (2001); ch. 95-294, § 2, at 2717-18, Laws of Fla. Topps alleged in her petition, inter alia, that the Florida Legislature should not have been permitted to pass a law reducing the amount of gain time an inmate could receive because, as she argued, the Legislature should have accomplished the result through the mechanism of a constitutional amendment. At that time, we considered all of the arguments presented in Topps’ petition and deemed them to be without merit. However, we denied the petition by simply issuing an unelabo-rated order denying relief. See Topps v. State, 800 So.2d 617 (Fla.2001) (table). Topps has now filed another petition for writ of mandamus asserting the identical issue.

ANALYSIS

The term “procedural bar” is a very broad term essentially meaning that the case, claim, or issue is precluded in some manner from being considered on the merits. The notion that a claim or an issue can be procedurally barred or “precluded” by a prior adjudication is commonly expressed in the concepts of res judicata and collateral estoppel.

Res judicata (or claim preclusion) is one type of procedural bar. Translated from the Latin, it means “a thing adjudicated.” See Black’s Law Dictionary 1312 (7th ed.1999). The doctrine of res judicata bars relitigation in a subsequent cause of action not only of claims raised, but also claims that could have been raised. See Florida Dep’t of Transp. v. Juliano, 801 So.2d 101, 107 (Fla.2001). The idea underlying res judicata is that if a matter has already been decided, the petitioner has already had his or her day in court, and for purposes of judicial economy, that matter generally will not be reexamined again in any court (except, of course, for appeals by right). See Denson v. State, 775 So.2d 288, 290 n. 3 (Fla.2000). The doctrine of res judicata applies when four identities are present: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made. See McGregor v. Provident Trust Co. of Philadelphia, 119 Fla. 718, 162 So. 323, 328 (1935); Palm AFC Holdings, Inc. v. Palm Beach County, 807 So.2d 703, 704 (Fla. 4th DCA 2002).

The doctrine of collateral estoppel (or issue preclusion), also referred to as estoppel by judgment, is a related but different concept. In Florida, the doctrine of collateral estoppel bars relitigation of the same issues between the same parties in connection with a different cause of action. See Clean Water, Inc. v. State Dep’t of Envtl. Reg., 402 So.2d 456, 458 (Fla. 1st DCA 1981) (citing Gordon v. Gordon, 59 So.2d 40, 44 (Fla.1952) (finding that “the principle of estoppel by judgment is applicable where the two causes of action are different, in which case the judgment in the first action only estops the parties from litigating in the second action issues — that is to say points and questions — common to both causes of action and which were actually adjudicated in the prior litigation”)).

This Court and other Florida courts have held that a ruling must be “on the merits ” for an issue to have truly been “decided” and thus preclude the consideration of an issue on the basis of res judica-ta. See Kent v. Sutker, 40 So.2d 145, 147 (Fla.1949) (noting that “a judgment rendered on any grounds which do not involve the merits of the action may not be used as a basis for the operation of the doctrine of res judicata”), cited in Cabinet Craft, Inc. v. A.G. Spanos Enters., Inc., 348 So.2d 920, 922 (Fla. 2d DCA 1977); Weit v. Rhodes, 691 So.2d 1108, 1109 (Fla. 4th DCA 1997). Florida courts have set forth similar holdings with regard to specific writ petitions. See Barone v. Scandinavian World Cruises (Bahamas), Ltd., 531 So.2d 1036, 1039 n. 3 (Fla. 3d DCA 1988) (petitions for writ of certiorari); Pub. Employees Relations Comm’n v. Dist. Sch. Bd. of DeSoto County, 374 So.2d 1005, 1010 (Fla. 2d DCA 1979) (petitions for writ of prohibition); State Dep’t of Envtl. Reg. v. Falls Chase Special Taxing Dist., 424 So.2d 787, 790 n. 8 (Fla. 1st DCA 1982) (prohibition petitions). Therefore, consis-tent with our prior decision in Kent, we conclude that for a matter to have res judicata effect, the disposition of a writ petition must be on the merits.

Although it is clear that a decision on the merits must have been made before res judicata becomes applicable, Florida case law is totally unclear and in conflict as to whether an unelaborated denial of relief related to extraordinary writ petitions should be considered a decision on the merits. For example, in Florida, the First, Second, and Fifth District Courts of Appeal have held that with one type of writ petition (petitions for writ of prohibition), an unelaborated denial will not be deemed a ruling on the merits and will not preclude the petitioner from presenting or asserting the issue again on direct appeal. See Smith v. State, 738 So.2d 410 (Fla. 5th DCA 1999); Sumner v. Sumner, 707 So.2d 934 (Fla. 2d DCA 1998); State Dep’t of Envtl. Reg. v. Falls Chase Special Taxing Dist., 424 So.2d 787 (Fla. 1st DCA 1982).

In contrast, the Third and Fourth District Courts of Appeal have addressed this uncertainty by specifically holding that an unelaborated denial of a petition for a writ of prohibition entered in such courts will be deemed a ruling on the merits. See Hobbs v. State, 689 So.2d 1249 (Fla. 4th DCA 1997); Obanion v. State, 496 So.2d 977 (Fla. 3d DCA 1986). The conflict and lack of uniformity is clear. Further, in Norman v. Singletary, 698 So.2d 614, 615 (Fla. 1st DCA 1997), the First District Court of Appeal concluded that this Court’s denial of a petition for a writ of mandamus in an order which did not set forth the basis for the denial did not bar the appellant from subsequently presenting an identical claim for relief on appeal from the denial of a habeas petition by the trial court.

This instant case is not the first time that we have considered addressing the lack of uniformity among the district courts on the issue of whether an unelabo-rated denial of an extraordinary writ petition should be considered a denial on the merits. In 1998, we addressed the matter through a proposed amendment of Florida Rule of Appellate Procedure 9.100, which is the rule that establishes the procedures for the processing of writ petitions filed in the appellate courts. At that time, we proposed a new subdivision 9.100(Z), Disposition of Writ Petitions. Under the proposed subdivision at that time, an unelabo-rated denial would have been considered a decision on the merits. The proposed amendments were submitted to The Florida Bar’s Appellate Court Rules Committee (committee) for consideration. The committee subsequently presented this Court with a petition to amend the rules but, contrary to the proposal as submitted by this Court, the committee’s proposed amendments totally reversed the approach and provided that an unelaborated denial of an extraordinary writ petition would not be a decision on the merits. This Court at that time denied the committee’s petition, rejected the committee’s proposal, and directed publication of the Court’s proposed amendments as originally drafted in The Florida Bar News. The records reflect that, after reviewing the proposals and the comments received related to the Court’s proposed amendments, none of which were in support of the Court’s proposed amendments, this Court determined that it would be better to approach a remedy for the lack of uniformity in the district courts with regard to the effect of an unelaborat-ed denial of a writ petition by opinion when the appropriate case was presented to this Court for consideration.

The unique procedural posture of the instant case now presents the appropriate case for us to address the issues for clarification of the law. Historically, in most cases, when we have denied an extraordinary writ petition on the merits we have either included information in the order indicating the basis of our decision, or we have specifically stated that the denial is “on the merits” or “with prejudice,” or “without prejudice.” Although the order issued in Topps’ previous case was unela-borated, this Court intended its denial to be on the merits. Because the four identities set forth in McGregor are now present in the instant case and in Topps’ prior case, we deny the instant petition upon application of the doctrine of res judicata. Nevertheless, we write this opinion today to clarify the future legal effect of an unelaborated denial in extraordinary writ petition cases and to provide uniformity in Florida law.

As with denials of relief entered in connection with petitions for certiorari in both the civil and criminal context, other types of extraordinary writ petitions such as petitions for mandamus, prohibition, all writs, habeas corpus, and quo warranto could certainly have relief denied based on a number of reasons other than the actual merits of the claim. Decisions made in connection with extraordinary writ petitions filed by both represented and pro se litigants follow this rule because litigants often present a large number of issues, not all of which may be ripe for consideration at the time the petition is filed. Often extraordinary writ petitions are filed with the appellate court before the trial court has entered a judgment in the proceeding below, and it is not at all clear whether the appellate court has considered the petition on the merits. See, e.g., Dist. Sch. Bd. of DeSoto County, 374 So.2d at 1010 (where district court previously issued unelaborat-ed denials of two prohibition petitions, court noted on appeal that “[i]t would be pure speculation to attribute any particular reasoning to the majority of the two prior panels of this court which decided that PERC’s suggestions for writ of prohibition should be denied” and that “those denials could have rested on reasons other than the merits of the jurisdictional question posed in those prior proceedings”). Since the nature of an extraordinary writ is not of absolute right, the granting of such writ lies within the discretion of the court. Therefore, extraordinary writs may be denied for numerous and a variety of reasons, some of which may not be based upon the merits of the petition.

Thus, we do not intend to foreclose a litigant from possible relief in another court if a matter has not been determined on the merits and if it is more appropriate for that later court to determine the merits of the issue. See generally Bared & Co., Inc. v. McGuire, 670 So.2d 153, 156-58 (Fla. 4th DCA 1996) (noting that certiorari is a discretionary writ and not grantable unless the harm cannot be corrected on final appeal and, therefore, a simple denial of the petition has a “nonpreclusive effect”); Keay v. City of Coral Gables, 236 So.2d 133, 135 (Fla. 3d DCA 1970) (“A denial of a petition for certiorari cannot be construed as passing upon any of the issues in the litigation.... ”). To ensure that all issues are uniformly given due consideration, henceforth unelaborated orders denying relief in connection with all extraordinary writ petitions issued by Florida courts shall not be deemed to be decisions on the merits which would later bar the litigant from presenting the issue under the doctrines of res judicata or collateral estoppel unless there is a citation to authority or other statement that clearly shows that the issue was considered by the court on the merits and relief was denied.

We emphasize that our holding today will operate only prospectively for we do not wish to impose on the lower tribunals a burden of potentially having to reconsider the claims presented in any prior extraordinary writ petition that was previously disposed of by an unelaborated denial. Further, our holding certainly does not require the lower tribunals to issue an opinion in every writ case. When a court intends to deny an extraordinary writ petition on the merits, the court need only include in its order a simple phrase such as “with prejudice” or “on the merits” to indicate that the merits of the case have been considered and determined and that the denial is on the merits. The simple addition of such a phrase to any order which denies a writ petition will ensure that litigants’ substantive rights will not be extinguished by an unelaborated denial of an extraordinary writ petition when the merits have not been the basis of the court’s ruling.

Thus, henceforth, in this State, unelabo-rated denials in extraordinary writ cases shall not be deemed denials on the merits. We conclude • that it is not unreasonable nor does it impose an unnecessary burden upon courts to require that we all enter orders that can be clearly understood in terms of scope and impact of the determination upon the parties and to be uniform in our application of Florida law.

It is so ordered.

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

      . We subsequently addressed the Stop Turning Out Prisoners Act and held that it did not violate the single subject requirement of Florida's Constitution. See Comer v. Moore, 817 So.2d 784 (Fla.2002).

      . At times some courts have erroneously used the term "res judicata" and "law of the case" interchangeably. The correct term for writ petitions is "res judicata.” This distinction was pointed out in Public Employees Rela

        tions Commission v. District School Board of DeSoto County, 374 So.2d 1005 (Fla. 2d DCA 1979). The Second District Court of Appeal stated:
      Although the school board speaks in terms of the law of the case having been established on the jurisdictional point by these previous denials of writ of prohibition, the applicable doctrine is res judicata since proceedings for writs of prohibition are original proceedings before this court and thus the denials in those proceedings do not constitute prior rulings by this court in the same case now before us for review. The doctrines of "law of the case” and res judicata are somewhat similar, but the latter has a more binding effect and the distinction is a significant one.

        Id. at 1010 n. 1.

      . The proposed rule did more than simply set forth that an unelaborated denial would be deemed a denial on the merits. It also set forth guidelines for when a dismissal (as opposed to a denial) would be more appropriate, as well as setting forth options for transferring writ petitions to other courts.

      . On December 22, 1999, we issued an order declining to adopt our proposed amendments to rule 9.100. See In re Amendment to the Florida Rules of Appellate Procedure Rule 9.100, 751 So.2d 50 (Fla.1999) (table).

      . Relief may not be granted for a number of reasons: the relief sought is either premature or moot, or the appellate court may deem it more appropriate to review the allegations on direct appeal later. While in this Court if we do not grant relief due to prematurity or mootness, we generally dismiss the petition indicating the basis, we have noticed that some courts simply deny the petition.

      . Our decision today is in accord with that portion of our decision in Barwick v. State, 660 So.2d 685, 691 (Fla.1995), in which we held that an unelaborated denial in a prohibition petition filed in this Court seeking review of a trial court’s refusal to grant a motion to ■ disqualify would not constitute a denial on the merits unless the order stated that it was “with prejudice.” For purposes of uniformity, we recede from that portion of our decision in Barwick in which we approved the Third District's practice of considering unela-borated denials in prohibition cases to be decisions on the merits. See id. To ensure that litigants and courts alike are clear as to the legal effect of unelaborated denial orders, henceforth, if a Florida court denies a writ petition with the intent that the denial be on the merits, language to that effect must be included in the order.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David DIONNE, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-1290.
    Supreme Court of Florida.
    Jan. 22, 2004.

      James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Mary G. Jolley and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We originally accepted jurisdiction to review State v. Dionne, 814 So.2d 1087 (Fla. 5th DCA 2002), pursuant to article V, section 3(b)(3), of the Florida Constitution. After further consideration, we have determined not to exercise our discretionary jurisdiction in this case. Accordingly, this case is hereby dismissed.

It is so ordered.

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

QUINCE, J., dissents.


author: PER CURIAM. ANSTEAD, C.J.,

text:
    Johnny ROBINSON, Appellant, v. STATE of Florida, Appellee. Johnny Robinson, Petitioner, v. James V. Crosby, Jr., Secretary, Florida Department of Corrections, Respondent.
    Nos. SC04-46, SC04-64.
    Supreme Court of Florida.
    Jan. 29, 2004.

      John W. Jennings, Capital Collateral Regional Counsel — Middle Region, Peter J. Cannon, Assistant Capital Collateral Counsel, and Daphney Gaylord, Assistant Capital Collateral Counsel, Tampa, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Kenneth S. Nunnelley and Barbara C. Davis, Assistant Attorneys General, Day-tona Beach, FL, for Appellee/Respondent.
   PER CURIAM.

Johnny Robinson, a prisoner under the sentence of death and an active death warrant, appeals an order of the circuit court denying a successive motion for postcon-viction relief filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Robinson has also filed a successive petition for writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. These cases have been consolidated. We affirm the trial court’s denial of postconviction relief, and we deny habeas relief.

BACKGROUND

The facts of this case are set forth in our opinions on direct appeal, wherein we affirmed Robinson’s first-degree murder conviction and, after resentencing, affirmed his death sentence. See Robinson v. State, 574 So.2d 108, 110 (Fla.), cert. denied, 502 U.S. 841, 112 S.Ct. 131, 116 L.Ed.2d 99 (1991); Robinson v. State, 520 So.2d 1 (Fla.1988). In 1993, Robinson filed his initial rule 3.851 motion in circuit court. Robinson v. State, 707 So.2d 688, 690 (Fla.1998). The trial court summarily denied several claims and held an eviden-tiary hearing on the remaining claims. Id. The trial court denied Robinson relief on all claims. Id. On appeal from the trial court’s order, this Court affirmed the trial court’s denial of relief on all claims. Id. at 690-700.

Robinson filed a state petition for habe-as corpus, which this Court denied on August 31, 2000. Robinson v. Moore, 773 So.2d 1, 7 (Fla.2000), receded from by Mann v. Moore, 794 So.2d 595, 598 (Fla.2001) (receding from Robinson (specifically footnote 1) and holding that “the simultaneous filing requirement in rule 9.140(b)(6)(E) and 3.851(b)(2) does apply to defendants whose convictions and sentences were finalized prior to January 1, 1994, notwithstanding the provision of rule 3.851(b)(6)”).

Thereafter, Robinson sought federal ha-beas relief in the United States District Court for the Middle District of Florida, which was denied. The Eleventh Circuit Court of Appeals issued an opinion affirming the district court’s denial of Robinson’s petition for a writ of habeas corpus. Robinson v. Moore, 300 F.3d 1320 (11th Cir.2002).

DEATH WARRANT PROCEEDINGS

On December 18, 2003, Governor Jeb Bush signed Robinson’s first death warrant. Robinson’s execution is presently set for February 4, 2004, at 6:00 p.m. In response to the signing of the death warrant, Robinson filed his second rule 3.851 motion, entitled “Successor Motion to Vacate Judgment and Sentence, and Request for Evidentiary Hearing and Stay of Execution,” (hereinafter “Successor Motion”). On January 16, 17, and 19, 2004, the trial court held an evidentiary hearing. On January 19, 2004, Robinson filed a motion seeking the release of evidence for DNA testing in a motion entitled “Defendant’s Motion to Release Evidence for DNA Testing” (hereinafter “DNA Motion”). On January 19, 2004, the trial court entered ’ its order on the Successor Motion, entitled “Order on Successor Motion to Vacate Judgment and Sentence, Request for Evi-dentiary Hearing and Stay of Execution” (hereinafter “Order Denying Successor Motion”), which denied all of the claims alleged in the Successor Motion. On the same day, the circuit court denied the DNA Motion in an order entitled “Order on Motion to Release Evidence on DNA Testing.”

SUCCESSIVE RULE 3.851 MOTION

Recantation Testimony

Robinson first argued that the newly discovered evidence of codefendant Clinton Fields’s recantation establishes that Robinson is not guilty of first-degree murder. The State asserts that this claim is procedurally barred because it was argued by Robinson in his initial rule 3.851 motion. See Robinson v. State, 707 So.2d 688, 690-91 (Fla.1998). When this claim was argued initially, the trial court denied Robinson postconviction relief after Robinson produced an affidavit authored by Fields, in which Fields repudiated his trial testimony. Id. at 691. This Court affirmed the trial court’s denial of that claim on the following bases: (1) It is undisputed that Robinson’s account of the incident is that he accidentally shot the victim; (2) Fields’s recantation in the form of an affidavit amounted to inadmissible hearsay; and (3) no independent corroborating evidence supports Fields’s new story. Id. at 690-92. Fields testified at the most recent evidentiary hearing, curing the previous hearsay problem.

Nevertheless, we conclude that Robinson has not demonstrated error in the trial court’s analysis and rejection of this claim. In considering a claim based upon newly discovered evidence, this Court explained in Jones v. State, 709 So.2d 512, 521 (Fla.1998):

Two requirements must be met in order for a conviction to be set aside on the basis of newly discovered evidence. First, in order to be considered newly discovered, the evidence “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.” Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla.1994).
Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. To reach this conclusion the trial court is required to “consider all newly discovered evidence which would be admissible” at trial and then evaluate the “weight of both the newly discovered evidence and the evidence which was introduced at the trial.”

Jones v. State, 709 So.2d 512, 521 (Fla.1998) (citations omitted). Importantly, Robinson has failed to demonstrate error by the trial court on the critical credibility issue that arises with Fields’s recantation testimony. The trial court has made a fact-based determination that the recantation is not credible. In light of conflicting evidence we must give deference to that determination. We addressed this concern in our opinion on Robinson’s first 3.851 appeal, wherein we stressed that recantation testimony “may be unreliable and trial judges must ‘examine all of the circumstances in the case.’ ” Robinson, 707 So.2d at 691 (quoting State v. Spaziano, 692 So.2d 174, 176 (Fla.1997)).

Robinson asserted below that Fields has a diminished mental capacity and that he is susceptible to coercion by law enforcement. We are satisfied that the trial court properly considered Fields’s diminished capacity, his hearing testimony, and all of the other relevant circumstances in toto when denying this claim, including the statements and testimony previously given by Fields that conflict with his recantation. At the most recent evidentiary hearing, for example, Fields became easily confused as to the order of events in the case. Notably, Fields testified that at his deposition in this case (which occurred after his own trial and conviction), he was represented by an attorney who was present and who advised him to tell the truth. Thereafter, Fields’s deposition testimony implicated Robinson in the intentional shooting death of the victim. Thus, we affirm the trial court’s denial of this claim because the trial court properly considered the entire history and context of Fields’s testimony— including his capacities and credibility— when evaluating the credibility of his recantation. See State v. Spaziano, 692 So.2d 174, 178 (Fla.1997) (finding that the trial judge did not abuse his discretion because he conducted a thorough eviden-tiary hearing, his decisions were supported by the evidence, and “because the trial judge is there and has a superior vantage point to see and hear the witnesses presenting the conflicting testimony [while] [t]he cold record on appeal does not give appellate judges that type of perspective”).

Robinson also argued that the newly discovered evidence of Fields’s recantation establishes that the State committed Brady and Giglio violations. Previously, this Court rejected Robinson’s same Brady/Giglio claim as being procedurally barred because it should have been raised on direct appeal. Id. Additionally, this Court analyzed the claim on the merits, finding that Robinson could not meet the requirements to support a Brady or Giglio claim. Id. at 693-94 (finding that the evidence was probably not “favorable” to Robinson under Brady, nor were the facts “clear-cut” enough to establish a Giglio violation).

This Court has already ruled against Robinson regarding whether or not the substance of Fields’s post-trial version of events, considered in the context of the entire circumstances of the case, establishes a violation of the precepts of Brady or Giglio. Robinson has failed to present any new law or fact in this new round of postconviction proceedings that warrants a reconsideration of our previous opinion. Further, the trial court’s ruling on this claim is consistent with its ruling on the recantation claim. Therefore, we affirm the trial court’s denial of this claim.

Racial Bias

Robinson also asserted in the Successor Motion that newly discovered evidence establishes that his prosecution and sentencing were impermissibly racially motivated. Specifically, he claims that in St. Johns County there exists a racial disparity in the imposition of the death penalty. To support this claim, Robinson introduced statistical data compiled by Dr. Michael Radelet, a sociology professor who has studied racial bias in the context of the death penalty. First, we note that Robinson previously argued this claim in a habeas petition to this Court, which we denied on the merits in Robinson v. Moore, 773 So.2d 1, 5-6 n. 4 (Fla.2000). Therefore, this claim is procedurally barred. See Owen v. Crosby, 854 So.2d 182, 187 (Fla.2003) (stating that claims that were raised or could have been raised in a prior postconviction motion are procedurally barred unless such claims are based on newly discovered evidence). Second, as the trial court pointed out, although Robinson claims that Dr. Radelet’s data has been revised and updated, the statistical evidence presented at the recent hearing was consistent with the statistical evidence presented in this case in 1994. Thus, Dr. Radelet’s proffered testimony could not have been properly offered at the recent evidentiary hearing as newly discovered evidence. See Jones, 709 So.2d at 521.

We also find no error in the trial court’s determination that Robinson has still failed to show “exceptionally clear proof’ of racial discrimination by the State with respect to this case. See McCleskey v. Kemp, 481 U.S. 279, 319, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (finding that although the defendant made “wide-ranging arguments that basically challenge the validity of capital punishment in our multiracial society,” the judicial system is to consider on a case-by-case basis the issue of whether the law was properly applied); Foster v. State, 614 So.2d 455, 463-64 (Fla.1992) (finding that the defendant failed to prove that the prosecutor “acted with purposeful discrimination in seeking the death penalty in his case” and stating that the racial statistical figures presented did not constitute “ ‘exceptionally clear proof of discrimination”). Therefore, we affirm the trial court’s denial of Robinson’s claim of racial bias in his prosecution and sentencing.

Impeachment

Robinson also contends that the trial court erred when it ruled that information contained in the investigating officers’ personnel files would not have been admissible for impeachment purposes at trial. At the evidentiary hearing, Robinson wanted to admit various unflattering notes that were contained in the investigating officers’ personnel files, in support of the fact that these officers were potentially capable of coercing Fields to lie. We find that the trial court ruled correctly when it denied relief in this claim, because Robinson could not show how this character evidence was going to be admitted for anything but propensity. See § 90.404(2)(a), Fla. Stat. (2003) (“Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue ... but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.”). Further, none of the prospective evidence from the officers’ personnel files appeared to relate to this case and Robinson was unable to show how it was relevant to prove a material fact in this case. See Breedlove v. State, 580 So.2d 605, 609 (Fla.1991) (“[T]he detectives’ criminal activities were collateral to any issues in Breedlove’s trial, and questions about them would not have promoted the ends of justice. Such questions would not have been permissible, and, thus, there is no reasonable probability that the outcome of the suppression hearing or the trial would have been different.”).

DNA

Robinson also appeals the trial court’s denial of his DNA Motion. It was not until these latest postconviction proceedings that Robinson moved to have evidence consisting of cigarette butts, beer cans, the victim’s clothing, hair, and the rape kit tested for the presence of DNA. The trial court denied the DNA Motion, finding that such testing is not now probative because Robinson does not dispute his involvement in this case, including the facts that he had sex with the decedent and that he fired the shots that killed her. The trial court concluded, “The results of any DNA test would not in any way exonerate the Defendant, nor mitigate his sentence.” Pursuant to Florida Rule of Criminal Procedure 3.853, the defendant must allege with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence. See Fla. R.Crim. P. 3.853(b)(1)-(6); Hitchcock v. State, 866 So.2d 23, 2003 WL 23162540 (Fla. Jan. 15, 2004). It is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence. Id.

However, Robinson failed to state in the motion how DNA testing of all the items listed would exonerate him of or even mitigate his sentences for robbery, sexual battery, and first-degree murder. Notably, Robinson stipulated that he shot the victim twice in the head, but claimed that the first shot was accidental and took place after the two engaged in consensual sex. See Robinson v. Moore, 300 F.3d 1320, 1323-26 (11th Cir.2002). Thus, his identity and physical contact with the decedent are not at issue. See Marsh v. State, 812 So.2d 579, 579 (Fla. 3d DCA 2002) (holding that DNA testing of rape kit would be superfluous because the defendant’s unsuccessful defense at trial was consensual sex and not identity). Because Robinson failed to meet his burden under rule 3.853 to allege with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence, we affirm the trial court’s denial of relief in this claim.

HABEAS CORPUS

First, we address Robinson’s claim that he is entitled to have his death sentence vacated in light of the United States Supreme Court’s opinion in Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (finding Arizona’s capital sentencing statute to be unconstitutional “to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for the imposition of the death penalty”). This Court has consistently rejected similar claims. For example, this Court recently rejected a Ring claim in Rivera v. State, 859 So.2d 495, 508 (Fla.2003), wherein we stated:

Rivera asserts that Florida’s capital sentencing scheme violates the United States Constitution under the holding of Ring. This Court addressed similar contentions in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002), and, while there was no single majority view expressed, we denied relief. We have since rejected numerous similar claims and find that Rivera is likewise not entitled to relief on this claim.

In cases involving two of the aggravating factors found in the case at bar (prior violent felony and that the murder was committed during the course of a sexual battery and kidnapping), this Court has also relied on the existence of those factors when denying Ring claims. This Court has held that the aggravators of murder committed “during the course of a felony” and prior violent felony involve facts that were already submitted to a jury during trial and, hence, are in compliance with Ring. See Owen v. Crosby, 854 So.2d 182, 193 (Fla.2003) (rejecting the defendant’s Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), claim in light of Ring on the basis of Bottoson, but noting that the “during the course of a felony” and the prior violent felony aggra-vators “involve[d] circumstances that were submitted to the jury and found to exist beyond a reasonable doubt”); Banks v. State, 842 So.2d 788, 793 (Fla.2003) (denying Ring claim pursuant to Bottoson, but pointing out that the “during the course of a felony” and the prior violent felony ag-gravators also justified denying the claim); see also Anderson v. State, 863 So.2d 169 (Fla.2003) (denying Apprendi/Ring claim consistent with similar Florida cases, also because the jury unanimously recommended death and the trial judge found the aggravator of prior violent felony), petition for cert. filed, No. 03-8065, - U.S. -, - S.Ct. -, - L.Ed.2d - (U.S. Dec. 18, 2003); Rivera v. State, 859 So.2d 495, 508 (Fla.2003) (finding that Rivera was not entitled to relief based on Bottoson, the fact that he had a unanimous jury death recommendation, and the existence of the two aggravators prior violent felony and murder committed “during the course of a felony”).

In short, this Court has rejected similar Ring claims and has held that the aggrava-tors of prior violent felony and “murder committed during the course of a felony” are exceptions to a Ring analysis because they involve facts already submitted to and found by a jury. Robinson’s Ring claim is without merit because he has not argued law or fact that distinguishes his case from our recent decisions.

Second, we address Robinson’s claim that he is entitled to relief because Florida’s standard jury instructions in capital cases violate Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Specifically, Robinson claims that Florida’s standard jury instructions in capital cases do not comply with Caldwell, in light of the Ring opinion, because Ring requires the jury to play a vital role in sentencing and the jury instructions currently diminish that role. Caldwell and Ring involve independent concerns. Ring’s focus is on jury findings that render a defendant eligible for the death penalty, while Caldwell’s focus as applied in this state is on the jury’s role in the decision to recommend a sentence for death-eligible defendants. Therefore, Ring does not require that we reconsider the Caldwell issue raised in this case. Notwithstanding the addition of the Ring argument to the Caldwell claim, Robinson has not presented any new law or fact in this habeas petition that warrants a reconsideration of our previous ruling in this case that no Caldwell violations occurred in this case. See Robinson, 574 So.2d at 113. Therefore, we deny habeas relief on this claim.

Accordingly, based on the foregoing, we affirm the trial court’s denial of 3.851 relief and we deny habeas corpus relief.

It is so ordered.

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

ANSTEAD, C.J., concurs specially with an opinion.

ANSTEAD, C.J.,

specially concurring.

I concur in the majority opinion in all respects except for its discussion of the decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . Robinson v. Moore, No. 99-00415-CV-J-10 (M.D.Fla.2001).

      . Further, this Court noted that Fields recanted only after the statute of limitations passed for a potential perjury charge in this case. Id. at 692 n. 8.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      . This Court has also denied Robinson’s ineffective assistance of counsel claim, which constituted a variation of his Brady/Giglio claim. See Robinson, 707 So.2d at 694.

      . The record reflects that the types of notations that Robinson attempted to admit about the officers consisted of things like being reprimanded for failing to follow orders, refusing to report to work, and refusing to appear in court.

      . On appeal after his resentencing, Robinson raised a Caldwell claim, arguing that the jury instructions diminished the jury's role in the sentencing process. This Court denied relief on that claim and related claims in our opinion, stating:
      This Court previously has ruled adversely to Robinson’s additional claims that call into doubt the propriety of the standard jury instructions; that the trial court improperly rejected Robinson's requests for additional jury instructions; that the jury was misadvised in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), see Grossman v. State, 525 So.2d 833, 839 (Fla.1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989)....

        Robinson, 574 So.2d at 113 (footnotes omitted).


text:
    Leonard NORTHUP, Petitioner, v. Herbert W. ACKEN, M.D., P.A., Respondent.
    No. SC02-2435.
    Supreme Court of Florida.
    Jan. 29, 2004.

      Scott M. Whitley of Morgan, Colling and Gilbert, P.A., Tampa, FL, for Petitioner.
    Richard E. Ramsey and Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Orlando, FL, for Respondent.
   PER CURIAM.

We have for review the decision in Herbert W. Acken, M.D., P.A. v. Northup, 827 So.2d 1070 (Fla. 2d DCA 2002), which certified conflict with the decision in Gardner v. Manor Care of Boca Raton, Inc., 831 So.2d 676 (Fla. 4th DCA 2002). We have jurisdiction, see art. V, § 3(b)(4), Fla. Const., and quash the decision below.

Facts and Procedural History

The instant discovery dispute arose within an action for medical malpractice filed by the petitioner, Leonard Northup, alleging that the respondent, Dr. Herbert Acken, failed to diagnose a cancerous tumor which resulted in the death of petitioner’s wife. See Acken, 827 So.2d at 1071. Pursuant to the trial court’s pretrial case management order, the petitioner submitted a witness and exhibit list to the court, which included Dr. Michael Dillon as an expert witness, in November of 2000. See id. In the process of litigation preparation, the respondent’s attorneys gathered deposition testimony Dr. Dillon had previously given in unrelated civil actions. Subsequently, the petitioner served a Request for Production upon respondent which sought copies of the deposition testimony transcripts possessed by defense counsel. See id. The respondent filed an objection to this request, asserting that the depositions requested were exempt from disclosure under the attorney work product doctrine. See id. The petitioner then moved to compel production, requesting that the trial court order the respondent to produce the entirety of the depositions and sworn statements of Dr. Dillon in the possession of defense counsel. See id.

Although not in the district court’s opinion, the record reveals that during the hearing on the motion to compel, it was the specifically stated position of defense counsel that Dr. Dillon had been deposed in this case and that the defense intended to impeach him during trial with the use of the deposition transcripts defense counsel had previously secured but refused to disclose. Defense counsel asserted that he was entitled to, and intended to, use the deposition transcripts to impeach Dr. Dillon during trial but the defense was not required to disclose or produce the transcripts until during the trial when the transcripts would be actually used. It was defense counsel’s position that the petitioner was not entitled to information concerning the prior depositions or copies of the transcripts until after the impeachment occurred during trial.

Following this hearing on the matter, the trial court granted the petitioner’s motion and ordered the respondent to produce copies of the depositions and other documents. Thereafter, Dr. Acken filed a petition for writ of certiorari in the Second District arguing that disclosure of the deposition transcripts would reveal counsel’s mental impressions regarding the relative importance of various issues at trial as well as counsel’s strategy for trial, and thereby invade the work product of counsel. Counsel specifically took the position that he was not required to produce the depositions even if he used them as impeachment at trial and specifically attempted to distinguish Dodson v. Persell, 390 So.2d 704 (Fla.1980).

Dr. Acken relied on Smith v. Florida Power & Light Co., 632 So.2d 696 (Fla. 3d DCA 1994), for the proposition that the collected deposition transcripts were protected from disclosure as attorney work product, even though the defense intended to use them at trial for impeachment. The Second District agreed and quashed the trial court’s order, but certified conflict with Gardner, 831 So.2d at 676, writing:

The facts of the case at bar may be closer to those in Gardner than those in Smith because there must be a “finite” number of depositions that Dr. Dillon has given in prior cases. However, we question whether Smith and Gardner can be reconciled. We adopt the rationale in Smith, and, applying that rationale here,, conclude that the group of Dr. Dillon’s prior depositions that Dr. Acken’s counsel has collected to impeach Dr. Dillon is attorney work product, which is not subject to disclosure. To the extent that Gardner would dictate a contrary result, we certify conflict.

Acken, 827 So.2d at 1072. This Court granted review on March 20, 2003. See Northup v. Acken, 842 So.2d 845 (Fla.2003) (table).

Analysis

In its 1947 opinion in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the United States Supreme Court originated what has become known as the “attorney work product privilege.” With words which have not lost their poignancy, the Court concluded:

In performing his various duties, ... it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in- which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work-is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed ... the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.

Id. at 510-11, 67 S.Ct. 385. In accordance with this reasoning, the United States Supreme Court established the “privacy of [an attorney’s] professional activities,” id. at 513, 67 S.Ct. 385, and foreclosed discovery of materials created by an attorney in preparation for litigation absent “adequate reasons to justify production.” Id. at 512, 67 S.Ct. 385.

This Court’s decision in Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970), provides the established bedrock principles applicable in considering the attorney work product privilege in Florida. In Surf Drugs, this Court addressed interrogatory questions, but expressed the broad balancing considerations involved in the discovery and litigation process. This court recognized:

A primary purpose in the adoption of the Florida Rules of Civil Procedure is to prevent the use of surprise, trickery, bluff and legal gymnastics. Revelation through discovery procedures of the strength and weaknesses of each side before trial encourages settlement of cases and avoids costly litigation. Each side can make an intelligent evaluation of the entire case and may better anticipate the ultimate results.

Surf Drugs, 236 So.2d at 111. In placing the work product protection within the scope of discovery, the Court stated:

What constitutes “work product” is incapable of concise definition adequate for all occasions. Generally, those documents, pictures, statements and diagrams which are to be presented as evidence are not work products anticipated by the rule for exemption from discovery. Personal views of the attorneys as to how and when to present evidence, his evaluation of its relative importance, his knowledge of which witness will give certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his convenience, but not to be used as evidence, come within the general category of work product.

Id. at 112 (emphasis supplied). Pertinent to the instant action is the holding in Surf Drugs that the scope of the attorney work product privilege protection is specifically bounded and limited to materials which are not intended for use as evidence or as an exhibit at trial. See id. at 112.

This precept was recognized, expanded upon, and specifically enunciated in our later decision in Dodson v. Persell, 390 So.2d 704 (Fla.1980). In addressing the petitioner’s contention that surveillance video recordings in the possession of the respondent were discoverable and not protected under the work product privilege, this Court made the following potent statement:

Any work product privilege that existed ... ceases once the materials or testimony are intended for trial use. More simply, if the materials are only to aid counsel in trying the case, they are work product. But, if they will be used as evidence, the materials ... cease to be work product and become subject to an adversary’s discovery.

Id. at 707. Thus, in accordance with Surf Drugs and Dodson, we reiterate our dedication today to the principle that in Florida, when a party reasonably expects or intends to utilize an item before the court at trial, for impeachment or otherwise, the video recording, document, exhibit, or other piece of evidence is fully discoverable and is not privileged work product.

In essence, Florida litigants must make a simple and discrete decision prior to entry of a pretrial case management order by the trial court. An attorney must evaluate whether he or she intends to use evidence in his or her possession for strategy and trial preparation purposes only, which would qualify the selection of the particular items as a protected product of the thought processes and mental impressions of an attorney. On the other hand, if the evidence or material is reasonably expected or intended to be disclosed to the court or jury at trial, it must be identified, disclosed, and copies provided to the adverse party in accordance with the trial court’s order and the discovery requests of the opposing party.

The instant case is clearly governed by this principle. At the hearing before the trial court regarding the instant discovery dispute, Dr. Acken’s attorney specifically submitted the following argument:

There’s no procedure that says that a party is entitled to get impeachment materials which are not evidence before trial. That’s obviously work product.
These are depositions which are going to be used for impeachment. They’re not evidence at trial. So therefore they don’t go on a witness list, they don’t have to be produced to the other side. Classic impeachment materials would be these depositions. That’s why there’s no case law on this topic because clearly this is protected by work product privilege and should not be produced.

The clearly erroneous position of the respondent in the trial court was that he was totally free to use depositions at trial and read portions thereof in the presence of the jury without ever disclosing the depositions until the impeachment actually occurred during trial. We conclude and specifically announce today that all materials reasonably expected or intended to be used at trial, including documents intended solely for witness impeachment, are subject to proper discovery requests under Surf Drugs, Dodson, and a host of lower court decisions, and are not protected by the work product privilege. Florida’s dedication to the prevention of “surprise, trickery, bluff and legal gymnastics,” Surf Drugs, 236 So.2d at 111, at trial holds no exception for impeachment materials. Indeed, approval of the arguments submitted by the respondent would bring great harm upon and undermine the idea that in this State, litigants are entitled to evaluate “the strength and weaknesses of each side before trial” and have the ability to “make an intelligent evaluation of the entire case ... [to] better anticipate the ultimate results.” Id. Trial by ambush is distant history, and it is clear that respondent had knowledge of the materials that would actually be used at trial.

In its decision below, the Second District concluded that the trial court’s order compelling production of a discernible group of documents gathered by counsel “departed from the essential requirements of the law.” Acken, 827 So.2d at 1071. The panel relied heavily upon Smith v. Florida Power & Light Co., 632 So.2d 696 (Fla. 3d DCA 1994), and concluded “that the group of Dr. Dillon’s prior depositions that Dr. Acken’s counsel has collected to impeach Dr. Dillon is attorney work product, which is not subject to disclosure.” Id. at 1072. We approve this reasoning to the extent that it reiterates our longstanding jurisprudence regarding work product, as expressed in this opinion.

However, the Second District’s analysis of the instant case cannot be approved solely within a “discovery vacuum.” We note that the court declined to address the expected and intended use of Dr. Dillon’s depositions at trial, and instead examined an academic question: whether the gathering and review of Dr. Dillon’s depositions could be protected as attorney work product. We agree that work product privilege could protect the depositions at issue from discovery, but only if the respondent never expected or intended to use them for impeachment at trial. Dodson and other decisions demand that evidence reasonably expected or intended for trial use be produced when requested. As noted above, the respondent in this case clearly intended to use portions of the depositions during trial. Thus, the Second District’s decision is erroneous to the extent that it could be interpreted to insulate these depositions and preclude discovery until the actual testimony of Dr. Dillon is presented at trial.

On the other hand, we do not approve the broad sweep of the Fourth District Court of Appeal’s decision in Gardner v. Manor Care of Boca Raton, Inc. The district court’s approval in Gardner of an order requiring “counsel to ‘cull’ through various surveys and personnel files to determine which ones are relevant,” Gardner, 831 So.2d at 678, an action which the court admitted “may indicate counsel’s strategy,” id., goes entirely too far. The overriding touchstone in this area of civil discovery is that an attorney may not be compelled to disclose the mental impressions resulting from his or her investigations, labor, or legal analysis unless the product of such investigation itself is reasonably expected or intended to be presented to the court or before a jury at trial. Only at such time as the attorney should reasonably ascertain in good faith that the material may be used or disclosed at trial is he or she expected to reveal it to the opposing party. Because the Fourth District’s Gardner decision conflicts with this principle, we must disapprove that portion of the opinion requiring counsel to evaluate the comparative relevance of documents for purposes of an opponent’s discovery.

Conclusion

In accordance with the above analysis and conclusions, we quash the decision under review, Herbert W. Acken, M.D., P.A. v. Northup, 827 So.2d 1070 (Fla. 2d DCA 2002), but approve the reasoning to the extent that it reiterates the principles espoused in this opinion, and disapprove the portion of Gardner v. Manor Care of Boca Raton, Inc., 831 So.2d 676 (Fla. 4th DCA 2002), that is inconsistent with this opinion. Although not directly addressed by the Second District, we also explicitly hold that if attorney work product is expected or intended for use at trial, it is subject to the rules of discovery. Therefore, we also approve the order entered by the trial judge in this case and remand the instant cause to the trial court for further proceedings.

It is so ordered.

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

LEWIS, J., concurs in result only.

      . This Court first recognized the work product doctrine and privilege in Atlantic Coast Line R. Co. v. Allen, 40 So.2d 115 (Fla.1949).

      . In a footnote, the Second District stated, "While the parties discussed the possible use of the depositions for impeachment at trial, the issue of whether such use is proper is not before us and we do not address it.” Acken, 827 So.2d at 1071 n. 1.


text:
    Lewis B. FREEMAN, etc., et al., Appellants, v. FIRST UNION NATIONAL BANK, etc., et al., Appellees.
    No. SC03-896.
    Supreme Court of Florida.
    Jan. 29, 2004.

      Patrice A. Talisman of Hersch & Talisman, P.A., Miami, FL; Scott Silver of Silver Garvett & Henkel, Miami, FL; Robert C. Josefsberg, Miami, FL; Ervin Gonzalez of Colson, Hicks, Eidson, et al., Coral Gables, FL; and Steven Mishan, Miami, FL, for Appellants.
    Elliot H. Scherker, Holly R. Skolnick, and Julissa Rodriguez of Greenberg Trau-rig, P.A., Miami, FL, for Appellees.
   PER CURIAM.

We have for review a question of Florida law certified by the Eleventh Circuit Court of Appeals that is determinative of a cause pending in that court and for which there appears to be no controlling precedent. Freeman v. First Union Nat'l, 329 F.3d 1231, 1234 (11th Cir.2003). We have jurisdiction. See art. V, .§ 3(b)(6), Fla. Const. The Court certified the question of whether Florida’s Uniform Fraudulent Transfer Act created a cause of action for damages in favor of a creditor against an aider or abettor to a fraudulent transaction. We answer the certified question in the negative for the reasons set forth in our analysis below.

FACTS

District Court

In federal district court, the creditor plaintiffs (hereinafter appellants) brought suit against First Union Bank (hereinafter First Union). Appellants sought monetary damages for First Union’s role in an alleged fraudulent Ponzi scheme conducted by a company called Unique Gems. The appellants alleged that First Union, as a banking institution servicing Unique Gems’ financial transactions, aided and abetted in the fraudulent transfers of money by Unique Gems to the harm of Unique Gems’ creditors. The district court dismissed the claim with prejudice, citing the failure to state a cause of action under Florida law for the aiding and abetting claim against First Union. The district court held that Florida’s Uniform Fraudulent Transfer Act (hereinafter FUFTA) only allows creditors to set aside fraudulent transfers under a theory of cancellation. The district court considered FUF-TA to be similar to the fraudulent transfer provision of the Bankruptcy Code, and held that FUFTA does not provide for aider and abettor liability.

In its order, the district judge analyzed the purpose and function of the FUFTA, stating:

The equitable remedies identified under the UFTA only permit creditors to set aside fraudulent transfers made to transferees. Specifically, § 726.108(1) permits creditors to: (1) avoid a fraudulent transfer made to a transferee; (2) request that a court attach assets transferred to a transferee; (3) obtain an injunction that enjoins the disposition of assets by a transferee; and, (4) request that a receiver be appointed to assume control over assets transferred to a transferee.
Additionally, courts have held the UFTA is modeled after the fraudulent transfer provisions in the Bankruptcy Code.

(Citation and footnote omitted.)

In dismissing the claim for failure to state a cause of action under Florida law, the district court explained:

Theoretically, the claim requires Plaintiffs plead Defendants (1) had actual knowledge of the fraudulent transfers and (2) that they substantially assisted UGI, its affiliates, and/or principals in effecting the transfers. However, the Court notes the dearth of case law supporting such a claim. Moreover, as detailed supra, the Court recognizes the limitations of the UFTA in light of its available remedies; only permitting creditors to set aside fraudulent transfers made to transferees.... Each and every case cited by Plaintiffs recognizes aiding and abetting common law fraud, or another cause of action, but not an UFTA violation.... [Attaching common law aiding and abetting liability to UFTA violations is inapposite in light of the remedies available under the statute.

(Citation and footnotes omitted.) The creditors appealed.

Eleventh Circuit

On appeal from the district court’s dismissal, the Eleventh Circuit noted that despite the lower court’s holding, FUFTA differs from the Bankruptcy Code in important ways. Freeman, 329 F.3d at 1233-34. The Eleventh Circuit found that FUFTA is broader than the Bankruptcy Code because it includes a “catch-all” phrase providing for “any other relief the circumstances may require.” Id. at 1233. The Eleventh Circuit also noted that in addition to the catchall phrase, FUFTA provides the court with broad equitable powers because it “unambiguously states that all common law remedies supplement its application.” Id. at 1234. The Eleventh Circuit examined Florida case law, but ultimately concluded that “[t]he jointly filed aiding and abetting claim is problematic because the lower Florida courts have not expressly approved such a cause of action and the Florida Supreme Court has not yet examined this question.” Id. at 1232 (footnote omitted). Thus, the Eleventh Circuit certified the following question to this Court: “Under Florida law, is there a cause of action for aiding and abetting a fraudulent transfer when the alleged aider-abettor is not a transferee?” Id. at 1234. We conclude that the creation of such an action was not contemplated by enactment of the statute.

FUFTA

The appellants argue that the certified question should be answered in the affirmative because they believe that FUFTA, specifically section 726.108(l)(c)3, Florida Statutes (2002), encompasses a separate tort for aiding and abetting a fraudulent transfer, with the wording “[a]ny other relief the circumstances may require.” Accordingly, the appellants contend that FUFTA is broad enough to allow a claim for money damages against First Union, which allegedly facilitated the fraudulent transfer of money. • The appellees respond that this Court should answer the certified question in the negative because the FUF-TA is strictly limited to relief against a “transferee” and First Union was not a transferee in this case.

We begin our analysis by considering the provisions of chapter 726, Florida Statutes, which codifies FUFTA and states in pertinent part:

726.105 Transfers fraudulent as to present and future creditors.—
(1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(a)With actual intent to hinder, delay, or defraud any creditor of the debt- or;....
726.106 Transfers fraudulent as to present creditors.—
(1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.
(2) A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to. believe that the debtor was insolvent. •
726.108 Remedies of creditors.—
(1) In an action for relief against a transfer or obligation under ss. 726.101-726.112, a creditor, subject to the limitations in s. 726.109 may obtain:
(a) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim;
(b) An attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with applicable law;
(c) Subject to applicable principles of equity and in accordance with applicable rules of civil procedure:
1.An injunction against further disposition by the debtor or a transferee, or both, of the- asset transferred or of other property;
2. Appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or
3. Any other relief the circumstances may require.

§§ 726.105-.108, Fla. Stat. (2002) (emphasis added). Although the FUFTA statutory scheme provides a “catch-all” phrase that allows courts to award “other relief,” we believe that the Legislature intended it to facilitate the use of the other remedies provided in the statute, rather than creating new and independent causes of action such as aider-abettor liability, as the appellants argue.

When considering legislative intent, this Court has consistently explained:

Our purpose in construing a statute is to give effect to the Legislature’s intent. State v. J.M., 824 So.2d 105, 109 (Fla.2002). In attempting to discern legislative intent, we first look to the actual language used in the statute. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000). If the statutory language is unclear, we apply rules of statutory construction and explore legislative history to determine legislative intent. Id.; Weber v. Dobbins, 616 So.2d 956, 958 (Fla.1993).

BellSouth Telecommunications, Inc. v. Meeks, 863 So.2d 287, 289 (Fla.2003). On the face of the statute, there is no ambiguity with respect to whether FUFTA creates an independent cause of action for aiding-abetting liability. There simply is no language in FUFTA that suggests the creation of a distinct cause of action for aiding-abetting claims against non-transferees. Rather, it appears that FUFTA was intended to codify an existing but imprecise system whereby transfers that were intended to defraud creditors could be set aside.

For example, recently, in Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So.2d 189 (Fla.2003), this Court analyzed FUFTA, stating:

The applicable statutory provisions in this area of the law are exceedingly clear. A “creditor” who possesses a “claim” may seek a number of remedies to prevent the fraudulent transfer of assets. Among the remedies are avoidance of the transfer, attachment, an injunction, appointment of a receiver, and “any other relief the circumstances may require.” § 726.108(l)(b), Fla. Stat. (2002). A transfer is fraudulent if made “without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.” § 726.106(1), Fla. Stat. (2002).
To utilize the protections of chapter 726, however, a plaintiff must show that he or she has a “claim” which qualifies the party as a “creditor.” See § 726.102(4), Fla. Stat. (2002). As defined in section 726.102, a “claim” is broadly constructed and “means a right to payment, whether or not the right is reduced to judgment, liquidated, unliqui-dated, fixed, contingent, matured, unma-tured, disputed, undisputed, legal, equitable, secured, or unsecured.” § 726.102(3), Fla. Stat. (2002). Thus, as is universally accepted, as well as settled in Florida, “A ‘claim’ under the Act may be maintained even though ‘contingent’ and not yet reduced to judgment.” Cook v. Pompano Shopper, Inc., 582 So.2d 37, 40 (Fla. 4th DCA 1991); see also Money v. Powell, 139 So.2d 702, 703 (Fla. 2d DCA 1962) (“In this state contingent creditors and tort claimants are as fully protected against fraudulent transfers as holders of absolute claims.”).

Id. at' 192. While this decision did not involve the issue we resolve today, our opinion demonstrates the narrow focus of the FUFTA and its limitations. We simply can see no language in FUFTA that suggests an intent to create an independent tort for damages.

CONCLUSION

To adopt the appellants’ position in this case would be to expand the FUFTA beyond its facial application and in a manner that is outside the purpose and plain language of the statute. Consistent with this analysis we conclude that FUFTA was not intended to serve as a vehicle by which a creditor may bring a suit against a non-transferee party (like First Union in this case) for monetary damages arising from the non-transferee party’s alleged aiding-abetting of a fraudulent money transfer. Accordingly, we answer the certified question in the negative and return this case to the Eleventh Circuit.

It is so ordered.

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

      . The certified question provides: "Under Florida law, is there a cause of action for aiding and abetting a fraudulent transfer when the alleged aider-abettor is not a transferee?” Id. at 1234.

      . The second amended complaint related that the Ponzi scheme was a pyramid-type scheme involving jewelry assembly. Specifically, investors obtained necklace-making kits (worth only about $100) from Unique Gems for a "deposit” of $3000. Once the investors assembled the necklaces, they were supposed to return them to Unique Gems and receive their deposit plus an additional $1800 per kit. Unique Gems did not market or sell the assembled necklaces, but instead made money through a layered-distribution network of assemblers. Unique Gems promised to pay current investors to recruit new investors to “deposit” money. The funds from the new investors were then used to repay the initial investors. The illusion of profits induced new investors to "deposit” money and caused older investors to reinvest.

      . The second amended complaint related the following facts in support of the aiding and abetting claim against First Union: Unique Gems had its primary bank account at First Union. First Union knew that Unique Gems was engaging in illegal activities and continued to allow Unique Gems to wire transfer money to Liechtenstein even after the State filed a lawsuit against Unique Gems. After the State initiated the lawsuit, First Union informed Unique Gems in a letter dated February 21, 1997, that it would be closing its account in ten days. However, First Union did not close the account at the expiration of that time period. Subsequently, a court-ordered injunction was entered on March 5, 1997, freezing the account. First Union allowed Unique Gems to wire transfer a total of $6.6 million to Liechtenstein (into an account owned by a company called Pearls and Gems) between February 10, 1997, and March 5, 1997. On the same day the injunction was issued, First Union notified Unique Gems that it would close the account in thirty days. Even after the injunction was entered, First Union allowed Unique Gems to wire transfer $2 million to Liechtenstein. First Union did not close the account until July 24, 1997.

      . We caution that our answer to the certified question in this case is confined to the context of FUFTA. We do not address whether relief is available under any other theory of liability or cause of action. See, e.g., Bankfirst v. UBS Paine Webber, Inc., 842 So.2d 155, 157 (Fla. 5th DCA 2003) (Harris, Senior Judge, dissenting) (stating that the non-transferee defendants "devised and implemented a plan by which the debtor was able to transfer his money" and opining, “I believe BankFirst stated a cause of action for civil conspiracy").


text:
    Jeanne E. PAUL, Petitioner, v. Jean-Claude PAUL, Respondent.
    No. SC02-681.
    Supreme Court of Florida.
    Feb. 5, 2004.

      James C. Blecke of Deutsch & Blum-berg, P.A., Miami, FL, for Petitioner.
    John G. Crabtree of John G. Crabtree, P.A., Key Biscayne, FL; and Philip J. Brutus of Brutus & Roberson, North Miami, FL, for Respondent.
   PER CURIAM.

We initially accepted jurisdiction to review Paul v. Paul, 807 So.2d 191 (Fla. 3d DCA 2002), a decision which the district court of appeal certified to be in direct conflict with the decision of another district court pursuant to article V, section 3(b)(4) of the Florida Constitution. Upon further consideration, we have now determined that we should exercise our discretion and discharge jurisdiction. Accordingly, this review proceeding is hereby dismissed.

It is so ordered.

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

QUINCE, J., dissents.